SAC v Secretary of State for the Home Department [2025] EWHC 1400 (Admin)

[2025] EWHC 1400 (Admin)Case No AC-2024-LON-003977
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 06/06/2025
Before
KATE GRANGE KC
Between
SAC (Anonymity granted)ClaimantSECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Serena K. Sekhon (instructed by Bhatia Best Solicitors) for ClaimantJoshua Yetman (instructed by Government Legal Department) for DefendantHearing Hearing date: 13 May 2025
Judgment Approved by the court for handing down
[1]This is an application for judicial review on behalf of the Claimant against a decision made by the Home Office Single Competent Authority (‘SCA’) acting on behalf of the Defendant, the Secretary of State for the Home Department, on 5 September 2024 in which the SCA decided that there were not reasonable grounds to conclude that the Claimant was a victim of modern slavery. On 11 October 2024 the Claimant’s request for reconsideration of the decision was rejected. Permission was granted on 15 January 2025 by Melanie Plimmer sitting as a Judge of the High Court.[2]The Claimant challenges the decision on five grounds: i) Ground 1 – The Defendant is in error of law/misdirected herself in law by applying too high a standard of proof for a reasonable grounds decision; ii) Ground 2 – The Defendant was in error of law/misdirected herself in law in relation to her application of the definitions of human trafficking and forced labour; iii) Ground 3 – the Defendant unlawfully failed to follow the statutory guidance; iv) Ground 4 – The Defendant’s reconsideration decision failed to take into account material considerations and was inadequately reasoned; v) Ground 5 – The Defendant’s reasonable grounds decision was irrational.

Background

[3]The Claimant was born in 1990 and is a national of Algeria. He arrived in the United Kingdom on 14 November 2022 on a visit visa with the intention of staying for a week. While in the United Kingdom the Claimant began receiving threatening phone calls from people in Algeria due to a relationship he had had with a woman outside of marriage. As a result, the Claimant was fearful of returning to Algeria so stayed in the United Kingdom, eventually overstaying his visa.[4]The Claimant lived in different hostels until February 2023 when he exhausted his money and savings. At that time, the Claimant approached the Algerian community and met an Egyptian man who recruited him to work cash-in-hand in construction and painting work. Thereafter the Claimant was passed between men for whom he worked on different construction sites. He ended up sleeping on the construction sites and worked for very low pay (£6-£7 per hour) which he did not receive in full. The conditions in which he was working were poor. He worked 12 hour days, 7 days a week with very short or no breaks at all. He slept on a dirty mattress with no proper heating or flooring. He felt unsafe and was not able to sleep or rest properly. He was not provided with safety equipment for the work he did and as a result he sustained various injuries.[5]Further details of the Claimant’s employment and the conditions in which he said he worked are set out at paragraph 10 below where I reproduce key aspects of the decision letter. At this stage it is relevant to note that the Claimant’s account was found to have been broadly consistent and there were not considered to be any significant credibility concerns with it.[6]On 13 June 2023 the Claimant contacted the British Red Cross (‘BRC’) and on 23 June 2023 the BRC did an initial assessment of the Claimant. At that time the Claimant was reporting concerns about his health, including weight loss and hair loss. On 6 July 2023 he was referred to Doctors of the World and in a report dated 23 August 2023 that organisation reported that the Claimant was suffering from alopecia (which was considered stress-related), low mood, gastro-oesophageal reflux and constipation. The Claimant told the BRC that he felt mentally and emotionally abused by his employer who had taken advantage of his situation. Support was provided for the Claimant by the BRC at this time, including access to a safe house. I note that the Claimant informed the BRC that he had found it difficult to access some of the services provided by the BRC as he had to “hide at the construction site” when professionals tried to contact him (see the BRC letter dated 9 August 2024).[7]On 9 July 2024 the Claimant was referred to the National Referral Mechanism (‘NRM’) for the identification of potential victims of trafficking and modern slavery by the Medaille Trust. The referral included the following passages:
“[The Claimant] came to the UK on a tourist visa on November 14, 2022 intending to stay for a week. However, he began receiving threatening phone calls from people in Algeria, related to a relationship he had with a woman outside of marriage, which is forbidden in his country. Fearing harm from the woman's family if he returned to Algeria, [the Claimant] decided to stay. He moved from hostel to hostel until he ran out of money and overstayed his visa. To survive, [the Claimant] approached the Algerians community…for work and started working cash-in-hand for an Egyptian man, doing construction and painting work. [The Claimant] knew he was being exploited because he had no legal status. He usually slept on the work premises, received his payments late, earned less than other workers, was not allowed proper breaks, and had to work long hours from 7:00 am to 7:00 pm. He felt unable to speak up, fearing that if he complained or refused to comply, his employer would get angry and possibly kick him out, leaving him with no means to survive. Initially exploited by this Egyptian man, [the Claimant] was continually passed around to different people when each job was completed. [The Claimant] was subjected to mistreatment and threats, with the perpetrators warning that if he didn't comply, he would be left without any means to survive… …The referral is being made because [the Claimant] is in a situation where he is being exploited and mistreated by his employers. He is forced to work long hours under harsh conditions, with little to no breaks, and his wages are being withheld. Additionally, he is living in inadequate and unsafe accommodation at his workplace. [The Claimant] has reached out to the British Red Cross for support to escape this exploitative situation and find a safe place to stay. The aim is to ensure his safety and well-being while addressing the exploitation he has been enduring.”
[8]On 9 August 2024 the BRC wrote a letter on the Claimant’s behalf which included the following passages:
“…[The Claimant] stated that he has been mentally and emotionally abused due to the employer’s warnings that if he did not accept the conditions imposed, he would not be given any further work and left with no way of supporting himself… …[The Claimant] described that if whoever was supervising his work saw him sitting or stopping, they would shout at him, cursing in Arabic, and he felt that he had no choice but to obey as the alternative would be being kicked off the job and consequently destitute and homeless with no means to survive… …[The Claimant] explained that he was expected to continue to work in spite of the injuries and that there was no sympathy, adding that “Work or go away, That’s the only rule”… …[The Claimant] reported that if he did not comply with the instructions from the employer and/or complained about his working conditions, the employer would be angry and would not give [the Claimant] any more work, which would leave him without pay, without a place to sleep and without means to survive. [The Claimant] explained that it was an impossible situation for him and that he felt he had no choice but to accept this work and conditions to be able to survive.”
[9]In a decision letter dated 5 September 2024 (received 10 September 2024) the Defendant decided that there were not reasonable grounds to conclude that the Claimant was a victim of modern slavery.[10]I have set out below the central passages of the decision letter. As will become apparent later in this judgment it is relevant to note the way in which the decision letter summarises the different aspects of the Claimant’s account against the three key tests which were applied:
“…The RG threshold is an objective one. The decision maker must agree with the statement that there are 'reasonable grounds to believe, based on all available general and specific evidence but falling short of conclusive proof, that a person is a victim of modern slavery (human trafficking or slavery, servitude, or forced or compulsory labour)'… Action – part ‘a’ In order to be considered to meet part ‘a’ you must have been subject to an act of recruitment/ transportation/ transfer/ harbouring/ receipt/ transferring or exchanging control over… …To survive you approached the Algerian community…where you met and started working for an Egyptian man doing construction and painting work… Initially you worked for the Egyptian man only, thereafter you were passed around to 2 different people when each job was completed. It is therefore considered you were subject to an act of recruitment, transportation and transfer. Means – part ‘b’ In order to be considered a victim of trafficking you must have been subject to an act of recruitment/ transportation/ transfer/ harbouring/ receipt/ transferring or exchanging control over: by means of: the threat or use of force or other form of coercion to achieve the consent of a person having control over another person/ abduction / fraud /deception /the abuse of power or of a position of vulnerability / the giving or receiving of payments or benefits. You stayed on the work premises sometimes only with a dirty mattress to sleep on. You worked 12-hour shifts from 7.00am – 7.00pm and were only allowed 15 minute breaks or no breaks. You received your payments late and earned less than other workers. You claim you were subject to mistreatment and threats with your employers warning you that if you did not comply with their demands you would be left without means to survive. If you stopped working they would shout at you. They withheld your wages and refused to pay you what you were due. You felt unable to speak up, fearing that if you complained or refused to comply, the Egyptian man would kick you out leaving you with nowhere to stay or means to support yourself. It is, therefore, considered that you experienced the threat or other form of coercion to achieve the consent of a person having control over another person in a position of vulnerability and the giving or receiving of payments or benefits. Purpose - part 'c' In applying part 'c' consideration must be given to whether you were recruited/ transported/ transferred/ harboured/ received/ transferred or exchanged control over for the purpose of exploitation. The description of forced labour is contained in the decision annex attached to this letter. You claim you arrived in the UK on 14/11/2022 on a visit visa intending to stay for 1 week. You decided not to return to Algeria and stayed in hostels until your money ran out and your visa expired on 06/04/2023. You sought work as you had no money and nowhere to stay. You started working for an Egyptian man doing construction and painting work. You were passed around to others to do work for them when each job was completed. You received your payments late, earned less than other workers, they confiscated your mobile phone, withheld your wages and refused to pay you what you were due. You were paid enough money for food. You felt forced to put up with the poor working conditions so that you could sleep at night in the places you were working. You were told to work or go away. You claim you were subject to mistreatment and threats both mentally and physically with your employer warning you that if you did not comply with his demands to work you would be left without means to survive and nowhere to live. Forced labour cannot be equated simply with either: working for low wages and/or in poor working conditions, situations of pure economic necessity or where a worker feels unable to leave a job because of the real or perceived absence of employment alternatives. There is no indication that you did not offer yourself for work voluntarily and did so to ensure that you had the means to provide for yourself. The SCA have reviewed the information that has been provided and the account suggests you choose to work voluntarily out of economic necessity and while the situation you find yourself in is unfortunate it is dissimilar to that of human trafficking or slavery, servitude, forced or compulsory labour. It is, therefore, considered that you were not subjected to forced labour nor was there an intention to subject you to this.”
Action – part ‘a’ Means – part ‘b’

Purpose - part 'c'

[11]The reference to the description of forced labour in the decision annex referred to an 8-page document in which various definitions were set out. Under the heading “Forced Labour” the decision annex stated as follows:
“Forced labour represents a severe violation of human rights and is a restriction of human freedom. The International Labour Organisation (ILO) defines forced work as: ‘All work or service which is extracted from any person under the menace of any penalty and for which the person has not offered himself voluntarily.’ This definition is a useful indication of the scope of forced labour for the purposes of human trafficking. The European Court of Human Rights took this as starting point for considering forced labour threshold and held that for forced labour, there must be work: • exacted under menace of any penalty, which is • performed against the will of the person concerned, that is, for which the person has not offered themselves voluntarily. Forced labour cannot be equated (considered) simply with either: • working for low wages and/or in poor working conditions • situations of pure economic necessity, as when a worker feels unable to leave a job because of the real or perceived absence of employment alternatives.”
The International Labour Organisation (ILO) defines forced work as: • exacted under menace of any penalty, which is • performed against the will of the person concerned, that is, for which the person has not offered themselves voluntarily. • working for low wages and/or in poor working conditions • situations of pure economic necessity, as when a worker feels unable to leave a job because of the real or perceived absence of employment alternatives.”

The International Labour Organisation (ILO) defines forced work as:

[12]As I note in the legal framework section of this judgment below, it is Article 2 of the ILO’s Forced Labour Convention 1930 which defines forced work in the way identified in the decision annex as set out above. I note that the final part of the annex quoted above dealing with what forced labour cannot be equated with appears in ILO publications, but it does not form any part of the ILO’s Forced Labour Convention from 1930 see e.g. its report ‘A Global Alliance against Forced Labour: Global Report under the Follow-up to the ILO Declaration on Fundamental Principles and rights at Work 2005’).[13]On 9 October 2024 on behalf of the Claimant the BRC submitted a request for reconsideration stating that the Defendant had failed correctly to apply the definition of forced or compulsory labour and quoting from the relevant parts of the statutory guidance which the BRC said the Defendant had overlooked or failed to apply.[14]On 11 October 2024 the Defendant rejected the request for reconsideration stating that she “had declined your request because no additional information has been provided which would materially alter the decision”.[15]The Claimant’s solicitors sent a letter before action to the Defendant challenging the negative reasonable grounds decision and the rejection of the reconsideration request. On 1 November 2024 the Defendant responded stating:
“…no information has been provided to indicate that any threats/force was used to make the potential victim work against his will, nor continue with the work. Rather, the information provided indicates that the potential victim worked due to economic necessity, which differs from the definition of human trafficking/modern slavery as outlined within the reasonable grounds decision.”
Relevant Law International instruments

Relevant Law

[16]The domestic legal provisions which have been enacted to address trafficking and modern slavery reflect certain commitments which have been made on the international plane. It makes sense to start the legal analysis with those international instruments. Article 4 of the European Convention on Human Rights (ECHR) states as follows:
“Article 4 Prohibition of slavery and forced labour 1. No-one shall be held in slavery or servitude. 2. No one shall be required to perform forced or compulsory labour. 3. For the purpose of this Article the term “forced or compulsory labour” shall not include: (a) any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention; (b) any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service; (c) any service exacted in case of an emergency or calamity threatening the life or well-being of the community; (d) any work or service which forms part of normal civic obligations.”
Prohibition of slavery and forced labour shall not include:

imposed according to the provisions of Article 5 of this Convention or

[17]In addition, Article 4(a) of the Council of Europe Convention on Action Against Trafficking in Human Beings (ECAT) defines “trafficking in human beings” as:
“the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs.”
[18]At Article 4(b) of ECAT it states:
“The consent of a victim of “trafficking in human beings” to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used.”
[19]The Council of Europe’s Explanatory Report to ECAT states as follows:
“74. In the definition, trafficking in human beings consists in a combination of three basic components, each to be found in a list given in the definition:  the action of: “recruitment, transportation, transfer, harbouring or receipt of persons”;  by means of: “the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person”;  for the purpose of exploitation, which includes “at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal or organs”... 83. By abuse of a position of vulnerability is meant abuse of any situation in which the person involved has no real and acceptable alternative to submitting to the abuse. The vulnerability may be of any kind, whether physical, psychological, emotional, family-related, social or economic. The situation might, for example, involve insecurity or illegality of the victim’s administrative status, economic dependence or fragile health. In short, the situation can be any state of hardship in which a human being is impelled to accept being exploited. Persons abusing such a situation flagrantly infringe human rights and violate human dignity and integrity, which no one can validly renounce. 84. A wide range of means therefore has to be contemplated: abduction of women for sexual exploitation, enticement of children for use in paedophile or prostitution rings, violence by pimps to keep prostitutes under their thumb, taking advantage of an adolescent’s or adult’s vulnerability, whether or not resulting from sexual assault, or abusing the economic insecurity or poverty of an adult hoping to better their own and their family’s lot. However, these various cases reflect differences of degree rather than any difference in the nature of the phenomenon, which in each case can be classed as trafficking and is based on use of such methods. 85. The purpose must be exploitation of the individual. The Convention provides: “Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs”
. National legislation may therefore target other forms of exploitation but must at least cover the types of exploitation mentioned as constituents of trafficking in human beings. 86. The forms of exploitation specified in the definition cover sexual exploitation, labour exploitation and removal of organs, for criminal activity is increasingly diversifying in order to supply people for exploitation in any sector where demand emerges. … 90. Article 4 ECHR prohibits forced labour without defining it. The authors of the ECHR took as their model the ILO Convention concerning Forced or Compulsory Labour (No. 29) of 29 June 1930, which describes as forced or compulsory “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily”. In the case Van der Müssele v. Belgium (judgment of 23 November 1983, Series A, No.70, paragraph 37) the Court held that “relative weight” was to be attached to the prior-consent criterion and it opted for an approach which took into account all the circumstances of the case. In particular it observed that, in certain circumstances, a service “could not be treated as having been voluntarily accepted beforehand”. It therefore held that consent of the person concerned was not sufficient to rule out forced labour. Thus, the validity of consent has to be evaluated in the light of all the circumstances of the case. 91. Article 4(b) of the present Convention follows ECHR case-law in that it states that a human-trafficking victim’s consent to a form of exploitation listed in Article 4(a) is irrelevant if any of the means referred to in sub-paragraph a. has been used. …”  the action of: “recruitment, transportation, transfer, harbouring or receipt of persons”;  by means of: “the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person”;  for the purpose of exploitation, which includes “at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal or organs”...

Primary legislation

[20]The international obligations set out above are given domestic legal effect by the Modern Slavery Act 2015 (‘the 2015 Act’). Part 1 of the 2015 Act identifies a series of offences, including in section 1 an offence of forced or compulsory labour. Section 1(5) makes clear that the consent of a person to the forced or compulsory labour does not preclude a determination that the person was being required to perform forced or compulsory labour. Section 2 of the 2015 Act creates an offence of human trafficking and section 3 defines ‘exploitation’ for the purposes of section 2, with reference back as appropriate to the definition of forced or compulsory labour in section 1 of the Act where a person is exploited for that particular purpose. As is accepted by both parties in this case there is a significant overlap between the concepts of forced labour and trafficking and I note that the Claimant was considered under both tests in the decision letter with no distinction being drawn in his specific case between the tests which applied.[21]Part 5 of the 2015 Act sets out the statutory regime for the protection of victims of slavery or trafficking. Section 49 of the 2015 Act (as amended by section 60 of the Nationality and Borders Act 2022 (‘the 2022 Act’)) provides that the Secretary of State must issue guidance, inter alia, about the sorts of things which indicate that a person may be a victim of slavery or human trafficking; the arrangements for determining whether there are reasonable grounds to believe that a person is a victim of slavery or human trafficking and the arrangements for determining whether someone is a victim of slavery or human trafficking.[22]Where a positive reasonable grounds decision has been made that there are reasonable grounds to believe that a person is a victim of slavery or human trafficking within the context of the legal framework, pursuant to section 61(1) of the 2022 Act that person will become “an identified potential victim”. That status gives rise to protections under section 61 of the 2022 Act and assistance and support under section 50A of the 2015 Act.

The Statutory Guidance

[23]Pursuant to the statutory obligations identified above the Secretary of State has published relevant guidance entitled ‘Modern Slavery: Statutory Guidance for England and Wales’. The version in force at the time of the reasonable grounds decision in this case was version 3.10.[24]Within section 2 of the statutory guidance it was stated, at paragraph 2.3, that “The essence of human trafficking is that the victim is coerced or deceived into a situation where they are exploited” and at paragraph 2.4 that “Human trafficking consists of 3 basic components: action, means and purpose of exploitation.” At paragraph 2.5, quoting the UNHCR Guidelines, the guidance stated that “an important aspect of [the] definition is an understanding of trafficking as a process comprising a number of interrelated actions rather than a single act at a given point of time”. The paragraph went on to state that “whether or not an international border is crossed, the intention to exploit the individual concerned underpins the entire process.”[25]Under the heading “means” in sections 2.9 and 2.10 the guidance stated:
“2.9 An adult victim of human trafficking must have been subject to a ‘means’ – the threat or use of force or other form of coercion to achieve the consent of a person having control over another person. 2.10 The apparent consent of a victim to be controlled and exploited is irrelevant when one or more of the following has been used to get that consent: • the threat or use of force • abduction • fraud • deception • the abuse of power or of a position of vulnerability • the giving or receiving of payments or benefits” • the threat or use of force • abduction • fraud • deception • the abuse of power or of a position of vulnerability • the giving or receiving of payments or benefits”
[26]At paragraph 2.15 of the guidance under the heading “Trafficking: - means – deception” it stated:
“2.15 There are also less straightforward cases, for example where people have been aware they would be working consensually in the sex industry in the UK but they were misled as to the conditions of the environment, particularly the degree of control (over freedom and earnings) before they arrived. Where the situation such individuals find themselves in amounts to exploitation, this could be a modern slavery case.”
[27]At paragraphs 2.22 and 2.24 the guidance made clear that it is the fact that specified actions are carried out for the purpose of exploitation, rather than whether or not exploitation has actually occurred, that is relevant.[28]Under the heading “Trafficking: exploitation – forced labour” the guidance stated as follows at paragraphs 2.40-2.42:
“2.40 Forced labour represents a severe violation of human rights and is a restriction of human freedom. The International Labour Organisation (ILO) defines forced work as: ‘All work or service which is exacted from any person under the menace of any penalty and for which the person has not offered himself voluntarily’. However, there are five exceptions. See ‘Forced labour exceptions’ 2.41 This definition is a useful indication of the scope of forced labour for the purposes of human trafficking. In Siliadan v France 2005 (Application no. 73316/01), the European Court of Human Rights took this as the starting point for considering a forced labour threshold and held that for forced labour, there must be work: ‘exacted under the menace of any penalty which is performed against the will of the person concerned, that is, for which the person has not offered themselves voluntarily.’ 2.42 Forced labour cannot be equated (considered) simply with either: • working for low wages and/or in poor working conditions • situations of pure economic necessity, as when a worker feels unable to leave a job because of the real or perceived absence of employment alternatives” ‘All work or service which is exacted from any person under the menace of any penalty and for which the person has not offered himself voluntarily’. ‘exacted under the menace of any penalty which is performed against the will of the person concerned, that is, for which the person has not offered themselves voluntarily.’ • working for low wages and/or in poor working conditions • situations of pure economic necessity, as when a worker feels unable to leave a job because of the real or perceived absence of employment alternatives”
[29]As I have noted at paragraph 12 above, and as was submitted to me by the Defendant, the text which appears at 2.42 of the statutory guidance appears in a number of ILO publications, although it does not form part of the definition of forced work in Article 2 of the Forced Labour Convention 1930 which is quoted at paragraph 2.40 of the statutory guidance.[30]I also note that at least two ILO publications (one of which was the one brought to my attention by the Defendant in order to explain that paragraph 2.42 of the guidance had its origin in guidance from the ILO) define “means of penalty” in a broad sense, including as follows:
“The penalty does not need to be in the form of penal sanctions, but may also take the form of a loss of rights and privileges. Moreover, the menace of a penalty can take multiple different forms. Arguably, its most extreme form involves physical violence or restraint, or even death threats addressed to the victim or relatives. There can also be subtler forms of menace, sometimes of a psychological nature. Situations examined by the ILO have included threats to denounce victims to the police or immigration authorities when their employment status is illegal, or denunciation to village elders in the case of girls forced to prostitute themselves in distant cities. Other penalties can be of a financial nature, including economic penalties linked to debts, the non-payment of wages, or the loss of wages accompanied by threats of dismissal if workers refuse to do overtime beyond the scope of their contract or of national law.”
[31]The passage above appears at paragraph 14 of the ICO’s report ‘A Global Alliance Against Forced Labour 2005’ under the heading ‘Forced labour: definitions and concepts’. Box 1.1 of that report provides examples of menace of a penalty including financial penalties, exclusion from future employment and deprivation of food, shelter or other necessities, and also circumstances which can indicate a lack of consent to work, including withholding and non-payment of wages. These are consistent with examples identified by the ILO in its publication 'Developing National Action Plans on Forced Labour’ from 2020 under the heading ‘(iii) Menace of any penalty’ which include “withholding wages or other promised benefits” and “deprivation of food, shelter or other necessities”. That publication also includes “withholding and non-payment of wages” as one of the circumstances potentially giving rise to involuntary work under the heading ‘(iv) lack of voluntary offer’.[32]Later in the statutory guidance, under the heading “Slavery, servitude and forced or compulsory labour” and under the sub-heading “Forced or compulsory labour (victim not trafficked)” paragraph 2.81 provides as follows:
“2.81. Labour is the provision of any service, not just manual labour. ‘Penalty’ may go as far as physical violence or restraint, but it can also take subtler forms of a psychological nature, such as threats to denounce victims to the police or immigration authorities when their employment status is illegal. Consent is a factor in forced and compulsory labour, but a victim may have given consent in a situation where they felt they had no viable alternative, in which case they could still be subject to forced or compulsory labour. For a person to be a victim of forced or compulsory labour there must have been 2 basic components: • Means – threat of penalty – for example, threat or use of force, coercion, abduction, fraud, deception, abuse of power or vulnerability • Service – as a result of the means, an individual provides a service for benefit, for example, begging, sexual services, manual labour, or domestic service” abduction, fraud, deception, abuse of power or vulnerability benefit, for example, begging, sexual services, manual labour, or domestic service”

abduction, fraud, deception, abuse of power or vulnerability

[33]The sentence in this guidance above at paragraph 2.81 which begins with “’Penalty may go as far…’ is a direct quotation from the ECtHR decision in CN v France (Application 67724/09) dated 11 October 2012 at paragraph 77. The material paragraphs in that decision which are relevant to the definition of forced or compulsory labour are as follows (paragraphs 71-79):
“71. In Van der Mussele v. Belgium (23 November 1983, § 32, Series A no. 70) and Siliadin (cited above, § 116) the Court considered, in terms largely inspired by those of Article 2 § 1 of ILO Convention no. 29 of 1930 on forced labour, that forced or compulsory labour within the meaning of Article 4 § 2 of the European Convention means “work or service which is exacted from any person under the menace of any penalty, against the will of the person concerned and for which the said person has not offered himself voluntarily”. 72. In the instant case the Court observes that the first and second applicants allege that they did work, in the form of household chores, at the home of Mr and Mrs M. against their will. 73. However, the Court is not persuaded that the two applicants were placed in a similar situation as regards the amount of work done. The first applicant, who did not attend school, was responsible for all the household chores at the home of Mr and Mrs M. and had to take care of their disabled son. She worked seven days a week, with no day off and no pay, rising early and going to bed late (and sometimes even having to get up in the middle of the night to take care of Mr and Mrs M.’s disabled son), and she had no time for leisure activities. In comparison, the second applicant attended school and had time to do her homework when she got home from school. Only then did she help the first applicant with the household chores. 74. In order to clarify the notion of “labour” within the meaning of Article 4 § 2 of the Convention, the Court specifies that not all work exacted from an individual under threat of a “penalty” is necessarily “forced or compulsory labour” prohibited by this provision. Factors that must be taken into account include the type and amount of work involved. These factors help distinguish between “forced labour” and a helping hand which can reasonably be expected of other family members or people sharing accommodation. Along these lines, in the case of Van der Mussele v. Belgium (23 November 1983, § 39, Series A no. 70) the Court made use of the notion of a “disproportionate burden” to determine whether a lawyer had been subjected to compulsory labour when required to defend clients free of charge as a court-appointed lawyer. 75. In the present case the Court considers that the first applicant was forced to work so hard that without her aid Mr and Mrs M. would have had to employ and pay a professional housemaid. The second applicant, on the other hand, has not adduced sufficient proof that she contributed in any excessive measure to the upkeep of Mr and Mrs M.’s household. Furthermore, while it is not disputed that the second applicant was the victim of ill-treatment by her aunt, it has not been established that the said violence was directly linked to the alleged exploitation, that is, to the housework in question. The Court is therefore of the opinion that the ill-treatment inflicted on the second applicant by her aunt does not fall within the scope of Article 4. 76. In view of the above, the Court considers that only the first applicant meets the first of the conditions of “forced or compulsory labour” within the meaning of Article 4 § 2 of the Convention, namely that the individual did the work without offering herself for it voluntarily. It remains to be seen whether the work was done “under the menace of any penalty”. 77. The Court notes that in the global report “The cost of coercion” adopted by the International Labour Conference in 1999 (see paragraph 52 above), the notion of “penalty” is used in the broad sense, as confirmed by the use of the term “any penalty”
. The “penalty” may go as far as physical violence or restraint, but it can also take subtler forms, of a psychological nature, such as threats to denounce victims to the police or immigration authorities when their employment status is illegal (ibid.). 78. In the present case the Court notes that Mrs M. regularly threatened to send the applicants back to Burundi, which for the first applicant represented death and abandoning her younger sisters (see paragraph 34 above). It also notes that according to her observations the first applicant had done the work required of her under the threat of being sent back to her country of origin (see paragraph 60 above). In the opinion of the Court, being sent back to Burundi was seen by the first applicant as a “penalty” and the threat of being sent back as the “menace” of that “penalty” being executed. 79. The Court therefore concludes that the first applicant was subjected to “forced or compulsory labour” within the meaning of Article 4 § 2 of the Convention by Mr and Mrs M. The second applicant, on the other hand, was placed in a different situation which did not fall within the scope of that provision.”[34]I note, in particular, the finding of the ECtHR at paragraph 74 above that, when determining whether work exacted from an individual under threat of a “penalty” is “forced or compulsory labour” prohibited by Article 4(2) of the ECHR “Factors that must be taken into account include the type and amount of work involved” and reference can be made to the notion of a “disproportionate burden” to determine whether the test is satisfied. I also note that the concept of “penalty” was found to be used “in the broad sense” (see paragraph 77) given the way in which it was described in relevant ILO reports.[35]It is also relevant to note that in Van Der Musselle v Belgium (1984) 6 EHRR 163 at §§32-33 the ECtHR addressed the interrelationship between the ILO Convention and Article 4 of the ECHR and said this:
“32. ...There is in fact a striking similarity, which is not accidental, between paragraph 3 of Article 4 (art. 4-3) of the European Convention and paragraph 2 of Article 2 of Convention No. 29. Paragraph 1 of the last-mentioned Article provides that "for the purposes" of the latter Convention, the term "forced or compulsory labour" shall mean "all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily". This definition can provide a starting-point for interpretation of Article 4 (art. 4) of the European Convention. However, sight should not be lost of that Convention’s special features or of the fact that it is a living instrument to be read "in the light of the notions currently prevailing in democratic States" (see, inter alia, the Guzzardi judgment of 6 November 1980, Series A no. 39, p. 34, § 95). 33. It was common ground between those appearing before the Court that the services rendered by Mr. Van der Mussele to Mr. Ebrima amounted to "labour" for the purposes of Article 4 § 2 (art. 4-2). It is true that the English word "labour" is often used in the narrow sense of manual work, but it also bears the broad meaning of the French word "travail" and it is the latter that should be adopted in the present context. The Court finds corroboration of this in the definition included in Article 2 § 1 of Convention No. 29 ("all work or service", "tout travail ou service"), in Article 4 § 3 (d) (art. 4-3-d) of the European Convention ("any work or service", "tout travail ou service") and in the very name of the International Labour Organisation (Organisation internationale du Travail), whose activities are in no way limited to the sphere of manual labour.”
[36]Accordingly, while the ILO definition of forced work can provide a “starting point” for interpreting Article 4 of the ECHR, it is important not to lose sight of the fact that the ECHR is a living instrument to be read purposively as appropriate.[37]At paragraph 3.10 of the statutory guidance there appears a table which outlines “General Indicators of modern slavery” and those include the following:• Show signs that their movements are being controlled;• Feel that they cannot leave• Show fear or anxiety• Be subjected to violence or threats• Suffer injuries or impairments typical of certain jobs or control measures• Act as if they were instructed by someone else• Be forced, threatened or deceived into working in poor conditions• Receive little or no payment• Have no access to their earnings• Work excessively long hours over long periods• Not have any days off• Live in poor or substandard conditions• Be under the perception that they are bonded by debt• Be in a situation of dependence.”[38]I note that some (but not all) of these factors appear in the ILO indicators of forced labour which, according to the ECtHR, “provide a valuable benchmark in the identification of forced labour” – see VCL and AN v United Kingdom Application Nos. 77587/12 and 74603/12 dated 5 July 2021 at paragraph 99.[39]Within section 14 of the statutory guidance there is instruction to decision-makers about making a reasonable grounds decision and under the heading “Evaluating evidence in support of a referral” the guidance makes clear that an account containing gaps or inconsistencies can still meet the reasonable grounds threshold, for example where the gaps or inconsistencies are minor or there is supporting corroborating information (see paragraph 14.66). At paragraph 14.73 it stated:
“If someone referred into the NRM gives an incomplete or inconsistent account, decision makers must assess whether there is evidence that such circumstances are present which may explain why the referred person has been unable to provide a detailed account of their exploitation. This consideration should form part of a decision maker’s holistic assessment of each referral.”

Reasonable grounds and anxious scrutiny by the court – case law

[40]In the recent case of R (AAM) v Secretary of State for the Home Department [2025] EWHC 447 (Admin) MacDonald J helpfully summarised the standard to be applied when the Defendant is taking a reasonable grounds decision. At paragraph 41 he stated:
“In these circumstances, the standard to be applied when the Defendant is taking a reasonable grounds decision has been described as a “low threshold of suspicion but not proof” (see R (HAM) v SSHD [2015] EWHC 1725 (Admin)) and “substantially equivalent to the ‘credible suspicion’ threshold” under Art 4 of the ECHR (see TDT v Secretary of State for the Home Department and Anr), the ECtHR having equated the “credible suspicion” standard with a putative victim’s account of having been trafficked being “not inherently implausible” (see CN v United Kingdom (2013) 56 EHRR 24). In R (HAM) v SSHD at [69] to [72], the court held that the question is not whether the potential victim has persuaded the decision-maker, but rather whether there is evidence which provides grounds upon which a reasonable observer could believe that this person is a victim, the decision falling to be taken in light of all the evidence, including evidence from specialist organisations or evidence which suggests that the potential victim’s account appears consistent with known trafficking patterns.”
[41]MacDonald J went on to consider the role of the court when reviewing a reasonable grounds decision in judicial review proceedings. At paragraph 42 he stated as follows:
“42. In reviewing a reasonable grounds decision, the court must adopt the approach helpfully summarised in R (SM) v Secretary of State for the Home Department [2024] EWHC 1683 (Admin) at [29] to [31] drawn from the cases set out in those paragraphs: “29. [B]oth sides agree that a decision that a person is not the victim of trafficking requires the Administrative Court to adopt a heightened or more rigorous level of scrutiny (also described as "anxious scrutiny") (see R(HAM)v SSHD [2015] EWHC 1725 (Admin) at [2] to [5]; R(FM) v SSHD [2015] EWHC 844 (Admin) at [24]; R(TVN) v. SSHD [2021] EWHC 3019 (Admin) at [4] to [5] and R(MN) v Home Secretary [2021] 1WLR 1956 at [240] to [246]; H at [2] to [5]). The general principles are: i) The starting point is that a high quality of reasoning is required in an Reasonable Grounds Decision (such as the SCA's Decision), which engages fully with the case advanced by the person concerned due to the importance of the decision as a potential gateway to important rights including the right to a Conclusive Grounds Decision. ii) A Reasonable Grounds Decision needs to demonstrate a careful and conscientious analysis of all relevant factors and that every factor that might tell in favour of the person concerned has been properly taken into account. iii) The requirement for a high standard of reasoning is all the more important given that a Reasonable Grounds Decision is a largely paper exercise, albeit conducted by a trained and qualified SCA decision maker. iv) The provision of proper reasons is an essential part of a lawful decision and thus a Reasonable Grounds Decision which contains insufficient or inadequate reasons will be unlawful and will generally be quashed, (subject to the "highly likely" test in section 31 of the Senior Courts Act 1981). v) The Guidance must be carefully applied, weighing the strength of the indicators or evidence presented and a comprehensive written assessment must be prepared, based on the circumstances of each case. “The Guidance requires decision-makers to include in their decision letters a full and detailed consideration explaining the reason for the decision in every case.” (MN at [243]). 30. However, the Court must not lose sight of the fact that its task is one of review for error of law, not correctness. Furthermore, anxious scrutiny is concerned with substance not semantics, “what matters is the substance of the analysis, reasoning and conclusions, rather than matters of wording or form" (MN at [245]), anxious scrutiny “does not mean that the court should strive by tortuous mental gymnastics to find error in the decision when in truth there has been none. The concern of the court ought to be substance not semantics” (HAM at [5], applying FM at [32], quoting R(Sarkisian) v IAT [2001] EWHC Admin 486 at [18]). 31. Lastly, “…particular care is necessary to ensure that the criticism is as to the fundamental approach of the [decision-maker], and does not merely reflect a feeling on the part of the appellate tribunal that it might itself have taken a different view of the matter from that that appealed to the [decisionmaker]” (MN at [245] applying Mibanga v Secretary of State for the Home Department [2005] INLR 377, Buxton LJ at [29]).”
[42]In a further recent case of R (Alnoor) v Secretary of State for the Home Department [2025] EWHC 922 (Admin) Fordham J also summarised the case law on what “anxious scrutiny” means in this particular context. At paragraph 28 he stated as follows:
“As I see it, what “anxious scrutiny” means really comes to this: i) Reasonableness review always involves a secondary judgment. It is not a substitutionary merits jurisdiction. It affords to the primary decision-maker an essential latitude as to outcome, and as to evaluative decisions in arriving at that outcome. That includes general latitude as to what enquiry is appropriate, as to what matters are relevant, as to what matters are irrelevant, and as to what weight to attribute to relevant matters. The governing test is reasonableness, in which the constitutional fact of built-in latitude remains prominent. Decision letters will be read with appropriate benevolence. And, since the onus is on the claimant to show a public law error, the public authority gets the benefit of the doubt. ii) There is an overlap between reasonableness and reasons. Unreasonableness can mean an outcome beyond the range of reasonable outcomes; and adequate reasons can mean clarity which eliminates genuine doubt as to what was decided and why. But unreasonableness can also mean a demonstrable flaw in the reasoning process (examples are where relevancies have been left out of account or where there is a serious logical error): see R (Law Society) v Lord Chancellor [2018] EWHC 2094 (Admin) [2019] 1 WLR 1649 at §98. And adequate reasons can mean grappling with the principal controversial issues. This means rigour within the reasoning process at the same time informs both public law duties: the duty to act reasonably; and the duty to give legally adequate reasons. iii) “Anxious scrutiny” means an adjusted reasonableness review. It retains all the virtues of secondary review (§28i above). It is particularly concerned with rigour in the decision-maker’s reasoning process (§28ii above). It is generally triggered by considerations relating to the nature and impact of the decision under review. It means the reviewing court has to do more; and also, the reviewing court needs more. The idea of the reviewing court doing more has been expressed in this way: “the court … must consider the decision with particular care” (MN §244). The court will “adopt a heightened or more rigorous level of scrutiny” (SM §29). The idea of the reviewing court needing more recognises that “the starting point must be in the standard of reasoning required in the decision itself”, where “a high quality of reasoning” and “a high standard of reasoning” (MN §242). iv) The reviewing court may find in anxious scrutiny a narrowing of the primary decision-maker’s latitude, whether as to what is within the range of reasonable outcomes, or as to what is reasonably sufficient enquiry, or as to what is legally relevant. There may be an adjustment for the benevolence with which a decision letter is to be read. There may be a tempering of the onus, which sees the claimant in substance getting the benefit of the doubt. In all this, the governing principle remains reasonableness. v) This practical consequence of this closer scrutiny is illustrated by the identification of a “need for decisions to show by their reasoning that every factor which tells in favour of the applicant has been properly taken into account”
. That was endorsed and applied to NRM decisions in MN at §242 and fn.32. It is derived from the asylum case of R (YH) v SSHD [2010] EWCA Civ 116 [2010] 4 All ER 448 per Carnwath LJ at §24. The language is “every factor” not “every obviously reasonable factor”; and “properly taken into account” not “taken into account”. It was “important in particular to establish” (MN §244). vi) The origins of anxious scrutiny are linked to the Court’s scrutiny of the reasoning process. R v SSHD, ex p Bugdaycay [1987] 1 AC 514 was the asylum reasonableness review case where Lord Bridge said that the “basis of the decision” in a right to life context would call for “the most anxious scrutiny” (531G). He also said that “within” the “limitations” of the court’s power of reasonableness review, the court would “subject an administrative decision to the more rigorous examination, to ensure that it was in no way flawed, according to the gravity of the issue which the decision determines” (531G). Lord Templeman spoke of “a special responsibility [which] lies on the court in the examination of the decision-making process” (537H). In Bugdaycay, the claimant Mr Musisi succeeded because of concerns about previous breaches which were “very relevant” and the decisions “appear to have been made without taking that fact into account” (534A). The evidence disclosed that there “may have been” a “defect in the decision-making process” (537F) and the Court was “not satisfied that the Secretary of State took into account or adequately resolved” the doubts (538A-B).” i) Reasonableness review always involves a secondary judgment. It is not a substitutionary merits jurisdiction. It affords to the primary decision-maker an essential latitude as to outcome, and as to evaluative decisions in arriving at that outcome. That includes general latitude as to what enquiry is appropriate, as to what matters are relevant, as to what matters are irrelevant, and as to what weight to attribute to relevant matters. The governing test is reasonableness, in which the constitutional fact of built-in latitude remains prominent. Decision letters will be read with appropriate benevolence. And, since the onus is on the claimant to show a public law error, the public authority gets the benefit of the doubt. ii) There is an overlap between reasonableness and reasons. Unreasonableness can mean an outcome beyond the range of reasonable outcomes; and adequate reasons can mean clarity which eliminates genuine doubt as to what was decided and why. But unreasonableness can also mean a demonstrable flaw in the reasoning process (examples are where relevancies have been left out of account or where there is a serious logical error): see R (Law Society) v Lord Chancellor [2018] EWHC 2094 (Admin) [2019] 1 WLR 1649 at §98. And adequate reasons can mean grappling with the principal controversial issues. This means rigour within the reasoning process at the same time informs both public law duties: the duty to act reasonably; and the duty to give legally adequate reasons. iii) “Anxious scrutiny” means an adjusted reasonableness review. It retains all the virtues of secondary review (§28i above). It is particularly concerned with rigour in the decision-maker’s reasoning process (§28ii above). It is generally triggered by considerations relating to the nature and impact of the decision under review. It means the reviewing court has to do more; and also, the reviewing court needs more. The idea of the reviewing court doing more has been expressed in this way:
“the court … must consider the decision with particular care” (MN §244). The court will “adopt a heightened or more rigorous level of scrutiny” (SM §29). The idea of the reviewing court needing more recognises that “the starting point must be in the standard of reasoning required in the decision itself”, where “a high quality of reasoning” and “a high standard of reasoning” (MN §242). iv) The reviewing court may find in anxious scrutiny a narrowing of the primary decision-maker’s latitude, whether as to what is within the range of reasonable outcomes, or as to what is reasonably sufficient enquiry, or as to what is legally relevant. There may be an adjustment for the benevolence with which a decision letter is to be read. There may be a tempering of the onus, which sees the claimant in substance getting the benefit of the doubt. In all this, the governing principle remains reasonableness. v) This practical consequence of this closer scrutiny is illustrated by the identification of a “need for decisions to show by their reasoning that every factor which tells in favour of the applicant has been properly taken into account”
. That was endorsed and applied to NRM decisions in MN at §242 and fn.32. It is derived from the asylum case of R (YH) v SSHD [2010] EWCA Civ 116 [2010] 4 All ER 448 per Carnwath LJ at §24. The language is “every factor” not “every obviously reasonable factor”; and “properly taken into account” not “taken into account”. It was “important in particular to establish” (MN §244). vi) The origins of anxious scrutiny are linked to the Court’s scrutiny of the reasoning process. R v SSHD, ex p Bugdaycay [1987] 1 AC 514 was the asylum reasonableness review case where Lord Bridge said that the “basis of the decision” in a right to life context would call for “the most anxious scrutiny” (531G). He also said that “within” the “limitations” of the court’s power of reasonableness review, the court would “subject an administrative decision to the more rigorous examination, to ensure that it was in no way flawed, according to the gravity of the issue which the decision determines” (531G). Lord Templeman spoke of “a special responsibility [which] lies on the court in the examination of the decision-making process” (537H). In Bugdaycay, the claimant Mr Musisi succeeded because of concerns about previous breaches which were “very relevant” and the decisions “appear to have been made without taking that fact into account” (534A). The evidence disclosed that there “may have been” a “defect in the decision-making process” (537F) and the Court was “not satisfied that the Secretary of State took into account or adequately resolved” the doubts (538A-B).”[43]The principles set out in the cases immediately above were not in dispute between the parties before me, save in one respect. By reference to the case of R (BG) v Secretary of State for the Home Department [2016] EWHC 786 (Admin) Mr Yetman on behalf of the Defendant doubted the analysis at paragraph 29(ii) of SM v SSHD (quoted at paragraph 42 of AAM v SSHD by Macdonald J) and paragraph 28(v) of Alnoor v SSHD. He submitted that the need for decision makers to demonstrate that “every factor” which tells in favour of the applicant has been “properly” taken into account does not mean any possible factor and must mean any legally relevant factor has been taken into account. He relies on a passage in the decision of Cranston J in BG v SSHD at paragraph 58 where he stated:
“In R (on the application of YH (Iraq)) v. Secretary of State for the Home Department Carnwath LJ (with whom Moore-Bick LJ and Etherton LJ agreed) said that the standard of anxious scrutiny meant "the need for decisions to show by their reasoning that every factor which might tell in favour of an applicant has been properly taken into account": [24]. That passage was invoked in R (FM) and R (SF). In my view this is nothing more than a traditional ground of judicial review, but applied with anxious scrutiny. Carnwath LJ refers to factors "properly" taken into account, in other words those legally relevant. It is not the law that a decision is flawed because every single factor in a party's favour, however trivial or incidental, has not been taken into account. Rather, what a competent authority must do in this type of case is to take into account relevant considerations expressly identified in the policies as well as those which, albeit not expressly identified, are obviously material to a person's case.”
[44]Ms Sekhon submits that this analysis is not consistent with how the case law has developed, including in SM and Alnoor, but she says that in any event that higher test would be met on the facts of this case because the decision-maker did fail to take into account legally relevant factors which should have been considered.[45]For reasons which I explain below, I did not need to resolve this difference between the parties’ submissions because, even accepting the points made by the Defendant and applying the test as set out at paragraph 58 of BG v SSHD, I have concluded that the decision did not take into account legally relevant considerations expressly identified in the policies as well as those which were obviously material to the Claimant’s case.

The arguments

[46]In this section of my judgment I set out the arguments of the parties on the grounds of challenge. What appears below is a summary of the detailed arguments I received in writing and orally during the hearing.[47]On behalf of the Claimant, Ms Sekhon submitted first (ground 1) that the decision failed to take into account the low or modest threshold which applied at the reasonable grounds stage. She pointed out that the guidance allowed for some lenience at that first stage and the relevant test can be satisfied even though there are inconsistencies or gaps in the Claimant’s account. Ms Sekhon submitted that the evidence, taken as a whole, was capable of satisfying that low bar.[48]The second ground of challenge was that the Defendant’s approach to the definitions of human trafficking and forced labour was too narrow, unduly restrictive and characterised by excessive rigidity which was not provided for in the statutory guidance. Ms Sekhon submitted that it was a misunderstanding and an over-simplification of the Claimant’s account to state that he remained in the job due to “pure economic necessity”. She pointed out that the Claimant’s account included the fact that his wages were being withheld from him and that he stayed in the job as a result of that. She characterised this as economic pressure or distress which she submitted was qualitatively different for example to a situation whereby a person stayed in a job due to a lack of alternative employment. She also submitted that the Claimant feared for his survival, being homeless and having been warned by those he was working for that if he did not carry on working he would be left without means to survive and with nowhere to live. She submitted that there was evidence of destitution both before and after the exploitation had occurred. She pointed out that the guidance at paragraph 2.81 specifically envisaged the possibility of a scenario where a person may consent to working in a situation where they felt they had no viable alternative and noted that the guidance suggested that such a person could still be subject to forced or compulsory labour. She submitted that the Defendant had simply failed to engage with these important aspects of the Claimant’s case. She also submitted that the Defendant failed to engage with the detailed facts of the Claimant’s case, which the Defendant accepted as credible and which supported the contention that the Claimant was subjected to force, threats or deception designed to induce him to provide and to continue to provide labour to those for whom he worked with the consequence that he was not undertaking the work voluntarily. Ms Sekhon relied on the fact that paragraph 2.10 of the guidance made clear that the apparent consent of a victim is irrelevant where that consent has been obtained for example, by an abuse of power or a position of vulnerability. She drew attention to Article 4(b) of ECAT and section 1(5) of the 2015 Act, both of which made clear that consent will not be relevant where certain means have been used to obtain the consent. She submitted that there was no proper analysis of the concept of consent in the decision, including with reference to paragraph 2.10 of the statutory guidance (see paragraph 25 above), particularly given the important nuances within the Claimant’s account on that issue. Ms Sekhon submitted that the issue of consent was relevant not just to means but also to purpose and that there was some overlap between the issues which were relevant to the strands of the test to be applied.[49]Closely linked to ground 2 is ground 3 of the claim whereby Ms Sekhon submitted that there had been a failure to follow the statutory guidance in this case. She submitted that, as well as the failure to follow paragraphs 2.10 and 2.81 of the guidance, the Defendant also failed to take into account paragraph 13.5 of the guidance which acknowledged that illegal immigrants may be particularly susceptible to modern slavery. She also submitted that there was a failure to follow paragraph 2.15 of the guidance which made clear that there are less straightforward cases where individuals start out working consensually but were misled as to the conditions of the environment and end up in a situation of modern slavery.[50]Ground 5 and the allegation of irrationality is closely linked to grounds 2 and 3. Ms Sekhon submitted that by failing to follow the statutory guidance and failing to take all relevant factors into account in the Claimant’s account the Defendant had acted irrationally.[51]Finally, Ms Sekhon submitted (ground 4) that the 11 October 2024 reconsideration refusal was unlawful because it was not consistent with the statutory guidance and was inadequately reasoned. In particular, while the reconsideration request was made on the specific basis that the decision was not in line with the statutory guidance (which is a separate ground for reconsideration under paragraph 14.216 of the guidance) the Defendant had rejected the request for reconsideration on the basis that no additional information had been provided which materially altered the reasonable grounds decision, which was a different test and not one which properly reflected the request which had been made.[52]On behalf of the Defendant, Mr Yetman submitted that the guidance had been complied with insofar as it was required to be taken into account and there was no failure to apply the modest threshold at the reasonable grounds stage. He submitted that while the issue of consent might be relevant to the question whether the Claimant was recruited for the purpose of exploitation, in this particular case the approach (and the guidance in paragraphs 2.10 and 2.81-2.82) gave way to or was displaced by the application of paragraph 2.42 of the guidance because there was evidence before the decision-maker which suggested that the Claimant was working voluntarily and for purely economic reasons. He said it was a rational approach for the decision-maker to conclude that any other factors which might point in the opposite direction had been outweighed. He submitted that the case was really about whether there was a menace of penalty and that in circumstances where what was driving the Claimant was economic necessity without more, that test was not satisfied. He placed particular reliance on the parts of the Claimant’s account where the Claimant said he feared having no means to survive and no place to stay or live which he submitted were economic considerations falling foul of the last part of paragraph 2.42 of the guidance. Mr Yetman submitted that it was not irrational for the Defendant to focus on these aspects of the Claimant’s account in order to conclude that it was a case of pure economic necessity which the guidance was clear could not satisfy the test. It was not enough that there had been exploitative working conditions – it had to be shown that the Claimant had been recruited for the purposes of exploitation in the form of forced labour.[53]The Defendant also submitted that the scope of this judicial review was limited to the application by it of the relevant statutory guidance. He pointed out that there was no challenge to the statutory guidance itself including the definition of ‘means of penalty’ in that guidance.[54]Mr Yetman also relied heavily on the Claimant’s account of having been told to “work or go away” which he submitted the Defendant was entitled to rely upon as showing that the Claimant was working voluntarily and was free to leave – hence the Claimant was not recruited for the purpose of exploitation in the form of forced labour. He submitted that there was nothing in the evidence before the decision-maker which indicated the Claimant was not at liberty to leave and he relied upon the fact that the Claimant did ultimately leave without being prevented from doing so. He said that while the guidance might be applied differently in another case that did not amount to an incorrect application of the guidance in this particular case and unless it could be shown that the Defendant’s approach had been irrational, there was no proper basis for challenge.[55]Mr Yetman drew attention to the fact that the threats which had been made against the Claimant and the consideration of whether the Claimant was consenting had been fully taken into account in the “means” (part (b)) part of the decision and he submitted that it would be double-counting those considerations if they were also taken into account when deciding whether the “purpose” limb of the test was satisfied.[56]According to Mr Yetman paragraph 2.15 of the guidance was confined to situations of sexual exploitation, which cases raised conceptually distinct issues, that did not arise here.[57]Mr Yetman sought to distinguish a number of other first instance decisions in which the courts had been critical of the approach taken at the reasonable grounds stage. He submitted that unless the court could conclude that the Defendant’s application of the guidance was irrational, there was no proper basis upon which the decision could be impugned. He also relied heavily on the decision of Upper Tribunal Judge Markus (sitting as a High Court Judge) in R (Saadawi) v Secretary of State for the Home Department [2017] EWHC 3032 (Admin) in which the court dismissed a challenge to a conclusive grounds decision in the case of an Egyptian national who worked for a Qatari national in the UK. In that case the Court determined that the Defendant had not erred in law when directing herself that there was no menace of penalty on the facts of the case. The operative paragraph in the decision is at paragraph 30 where the Judge stated:
“The Defendant properly directed herself that "menace of penalty" need not be physical and could take subtler forms. She found that there was none in this case. Ms Robinson says that the Defendant failed to address the penalty which was constraining the Claimant, that being the risk of being in the UK illegally if he did not cooperate with his employer. The problem with this submission is that it was not how the Claimant's case was presented and the Claimant's evidence did not suggest that that was the position. Although the Claimant had asked Abdullah about the extension of his visa and although Abdullah had reacted angrily, he also told the Claimant that he would sort it out. There was no indication that the Claimant cooperated with Abdullah's wishes because of his concerns about his visa and his immigration status. When he decided that he wanted to leave he did so without any apparent concern in that regard. Moreover there can be no proper criticism of the Defendant's decision that the timing and circumstances of the beating and threats on the Claimant's last day could not have been part of any controlling measure to keep him in employment. The explanation given in the letter is clearly rational. The other factors relied on by Ms Robinson (poor pay, living conditions, excessive work load, etc) could not have amounted to menace of penalty.”
[58]Mr Yetman submitted that similar reasons applied here because there was no menace of penalty which applied in the Claimant’s case.[59]Overall Mr Yetman submitted that the decision, when read as a whole, demonstrated that all relevant factors had been taken into account and since the decision was rational application of the statutory guidance, there was no proper basis upon which it could be held unlawful.[60]As to ground 4 and the reconsideration decision Mr Yetman submitted that, in the absence of additional evidence, the Defendant was entitled to conclude that there were not sufficient grounds to justify a substantive reconsideration. He submitted that, even if he was wrong about that, if I was with him on the lawfulness of the main decision, any error at that stage made no material difference, applying the test set out in section 31(2A) of the Senior Courts Act 1981.

Application/Discussion

[61]Having considered carefully the evidence and submissions, I am satisfied that the Claimant’s claim for judicial review must be allowed. In my assessment it is grounds 2 and 3 which accurately identify the central problems with the reasonable grounds decision in this case (and which mean that the decision is also irrational (ground 5)). Those grounds are very closely linked and I propose to deal with them together.[62]The statutory guidance is clear that when asking whether the work done was for the purpose of exploitation, the ILO definition is relevant. This comprises two basic elements: the work or service is exacted under the menace of a penalty and it is undertaken involuntarily (see paragraph 2.40). The operative parts of the decision letter which deal with the question of whether the recruitment of the Claimant was for the “purpose” of exploitation are very short and contain scant analysis of why the Claimant does not meet those tests. The critical part of the decision on purpose begins with the sentence “There is no indication that you did not offer yourself for work voluntarily…” and goes on to state “the account suggests you choose to work voluntarily out of economic necessity”. While Mr Yetman has pointed out some aspects of the Claimant’s account which might support that conclusion, including being told at some point “work or go away” there are other aspects of the Claimant’s account which suggest the opposite conclusion, but nowhere in that part of the decision letter are those features of his case considered and analysed. Those features included the accepted parts of the Claimant’s account which were recorded in the decision letter and which suggested that the Claimant was vulnerable and being subjected to situational and circumstantial pressures which might negate any consent or apparent voluntariness because he thought he had no alternative. The factors included working very long hours with no or inadequate breaks, sleeping in inadequate conditions on the construction site, having wages withheld, feeling unable to speak up, fearing that if he did he would be kicked out leaving him with nowhere to stay or means to support himself and being subjected to mistreatment and threats, with the employer warning him that if he did not comply with his demands he would be left without means to survive and nowhere to live. Nowhere in the decision are those factors looked at either individually or (more importantly) cumulatively as part of asking the question whether the Claimant was really free to leave and was staying voluntarily.[63]Paragraph 2.81 of the statutory guidance (which appears in the section looking at the “purpose” of the exploitation in forced or compulsory labour cases) states that “Consent is a factor in forced and compulsory labour, but a victim may have given consent in a situation in which they felt they had no viable alternative, in which case they could still be subjected to forced or compulsory labour”. In addition, paragraph 2.10 of the guidance (under the “means” section) made clear that the “apparent consent” of a victim to be exploited is irrelevant when one or more of the following have been used including “the abuse of power or of a position of vulnerability” and “the giving or receiving of payments or benefits”.[64]More fundamentally ECAT (including the Explanatory Report) and the 2015 Act (see paragraphs 18-20 above) highlight the fallacy of relying on apparent consent where other pressures have been applied. However nowhere in the decision letter was there any application of the guidance on consent (which the Defendant accepts can be relevant to purpose as well as means), or the statutory principles that it reflects, to the circumstances of the Claimant’s case. Nowhere was the question of consent analysed by reference to the totality of the Claimant’s accepted account. Factors which were relevant to any analysis of consent and whether the work was being done voluntarily were simply not considered in the operative part of the decision.[65]As I have set out above, Mr Yetman submitted that paragraph 2.42 of the guidance overrode or trumped other aspects of the guidance including the sections dealing with consent in paragraphs 2.81 and 2.10. But the problem with this submission is that nowhere is that explained in the decision letter and nowhere does the guidance indicate some hierarchy of considerations in this regard. On the contrary the guidance suggests that a “holistic” approach to the referral should take place (see 14.73 of the guidance at paragraph 39 above).[66]As to the question of whether there was evidence which provided grounds upon which a reasonable observer could conclude that the work was exacted under ‘menace of any penalty’, again the decision letter is thin on reasoning. Paragraph 2.81 of the guidance stated that “’Penalty’ may go as far as physical violence or restraint, but it can also take subtler forms of a psychological nature”. No such direction was recorded in the decision letter and there was no analysis of whether the Claimant had been threatened with a penalty of a psychological nature. That was despite the Defendant accepting that the employer had warned the Claimant that if he did not comply with his demands he would be left without means to survive and nowhere to live. I note that the guidance is clear (for example at paragraph 2.80) that the menace of “any” penalty may be sufficient and no limitation is put on that concept, consistent with the case law I have discussed above (at paragraph 33) which makes clear this is a broad concept. Some of the evidence before the decision-maker suggested that the Claimant might be continuing to provide his services because of his concerns that he would otherwise be homeless and unable to survive. There was no analysis as to whether that might lead a reasonable observer to conclude that menace of penalty was present in this case.[67]I also note (although I do not need to rely on this to reach my conclusion) that the ILO has made clear in its publications (discussed at paragraphs 30-31 above) that the menace of any penalty can be of a financial nature including for example credible threats of withholding and non-payment of wages. In this regard I note that the guidance draws heavily on the ILO’s publications (for example at paragraphs 2.40, 2.45, 2.48, and 3.19).[68]The operative parts of the decision also stated that the Claimant was working “so as to ensure you had the means to provide for yourself” and “out of economic necessity”. Reliance was placed on the final part of paragraph 2.42 of the guidance which states as follows:
“Forced labour cannot be equated (considered) simply with either: • working for low wages and/or in poor working conditions • situations of pure economic necessity, as when a worker feels unable to leave a job because of the real or perceived absence of employment alternatives.” • working for low wages and/or in poor working conditions • situations of pure economic necessity, as when a worker feels unable to leave a job because of the real or perceived absence of employment alternatives.”
[69]The decision does not however provide any explanation as to why the Defendant concluded that the Claimant’s situation was “simply” one of “pure economic necessity” in accordance with this part of the guidance. Again there was no consideration of the circumstantial and situational evidence which might lead a reasonable observer to conclude that the Claimant’s position was more complex and more acute than a situation of pure economic necessity. On one reasonable reading of his account he feared for his survival if he left the work. While that could be described as a matter of economic necessity, I have difficulty in seeing how that was accurately captured by that part of the guidance. In my judgment it is important to read that part of the guidance in full. That includes the concluding part of the second bullet which adds important context to the qualification. That reads “as when a worker feels unable to leave a job because of the real or perceived absence of employment alternatives.” The decision letter incorrectly records that part of the guidance by substituting “or” for “as” at the beginning of that section, so that the decision letter read “or when a worker feels unable to leave a job because of the real or perceived absence of employment alternatives.” In my assessment that is to rob this part of the guidance of important clarification. It assists as to the circumstances in which an individual might be acting for purely economic reasons. The decision-maker needed to ask themselves whether that was really what had occurred in the Claimant’s case and there was no attempt in the decision letter to address the (multiple) factors which did not readily fit with that characterisation of the Claimant’s situation.[70]In addition, seeking to characterise the Claimant’s situation as one involving “pure economic considerations” is concerning given the reality which will face many individuals who are subjected to trafficking and exploitation. Many will remain in work because they fear the consequences of what will happen to them if they do not receive money or shelter and that may be part of the menace of penalty in any particular case. In my assessment, if that part of the guidance is given too broad an application, it may undermine the purpose and intent behind the protections, contrary to the guidance which has been given by the courts in this area.[71]Standing back from the Claimant’s situation and looking at the situation holistically it is clear that there were indicators of forced labour on the basis of his account which would fall within the general indicators identified at paragraph 3.10 of the guidance. Those included actual physical harm to the worker (due to poor working practices on the construction sites), receiving little or no payment, having no access to their earnings, working excessively long hours over long periods, not having any days off, living in poor or substandard accommodation and being in a situation of dependence. Those indicators were not properly taken into account and considered under the relevant guidance when the Defendant considered whether the Claimant was recruited for the purposes of exploitation. As stated by the Court of Appeal in MN v SSHD at paragraph 342 the concept of “purpose” must be applied as a matter of ordinary language and common sense and having regard to what may reasonably be supposed to be the intended scope of ECAT. I am not satisfied that this was done in this case given the approach which was taken to whether the Claimant was working under menace of any penalty and whether he had offered himself voluntarily.[72]I also accept that paragraph 2.15 of the guidance warned about “less straightforward cases”, giving an example of sex trafficking, and urged decision-makers to ask whether a person who was initially consenting to the work might have been misled as to the conditions of their environment and the degree of control they had. In my assessment such considerations were also pertinent in the Claimant’s case and yet were not taken into account when determining the purpose question.[73]I do not accept the Defendant’s submission that the Claimant’s case is analogous to that in the case of R (Saadawi) v SSHD. That case concerned a conclusive grounds decision, not a reasonable grounds decision. It was also a case in which there was no indication the Claimant had co-operated with the employment because of concerns about his immigration status and in which any physical mistreatment could not have been part of any controlling measure to keep him in the employment (see the quotation from paragraph 30 of the decision set out at paragraph 57 above). In addition, that was a case in which the decision-maker had properly directed herself that the “menace of penalty” need not be physical and could take subtler forms (see the opening sentence of paragraph 30 of the decision). There was no such self-direction in this case, as there should have been applying paragraph 2.81 of the guidance.[74]I also reject Mr Yetman’s submission that the fact that the Claimant left the employment and found his way to the British Red Cross supports the contention that he was always free to leave. As I have set out at paragraph 6 above the Claimant’s exit from the employment was not straightforward and he did not find it easy to access the services of the Red Cross.[75]In reaching my conclusions I have taken into account the low threshold which applies at the reasonable grounds stage, as summarised at paragraph 40 above. I have taken into account that the test is whether there is suspicion but not proof and whether there is evidence which provides grounds upon which a reasonable observer could believe that this person is a victim, the decision falling to be taken in light of all the evidence. I have not lost sight of the fact that my task is to view for error of law not correctness and I have sought to focus on substance and not semantics. But this is a context which calls for anxious scrutiny and I am satisfied that legally relevant considerations expressly identified in the policies were not taken into account and should have been.[76]Accordingly, I am satisfied that grounds 2 and 3 are made out, namely that the Defendant failed to follow important parts of the statutory guidance which called for consideration in his case given the Claimant’s account was accepted as credible and the Defendant’s approach to the definitions of human trafficking and forced labour was too narrow, unduly restrictive and characterised by excessive rigidity which was not provided for in the statutory guidance.[77]It follows from my conclusions set out above that I also find that the decision was irrational (ground 5) because there are demonstrable flaws in the reasoning due to relevancies, as identified clearly in the statutory guidance, not being taken into account. That conclusion follows from my findings at paragraphs 61-75 above given the failure to take into account legally relevant matters and the lack of proper consideration of material aspects of the Claimant’s account. Applying the decision in R (Law Society) v Lord Chancellor [2018] EWHC 2094 (Admin) at paragraph 98 (and see also R (KP) v Secretary of State for Foreign and Commonwealth Affairs & Others [2025] EWHC 370 (Admin) at [56]) it can be said that the decision was thereby irrational and unreasonable (and see also R (SM) v SSHD at paragraph 70 and R (Alnoor) v SSHD at paragraph 28(ii) and 47).[78]As to Ground 1, I do not consider that this accurately reflects the true nature of the errors in the decision in this case, which I consider are more appropriately captured by the analysis under grounds 2, 3 and 5. I therefore dismiss ground 1.[79]As to ground 4, I accept the Claimant’s submissions, as summarised at paragraph 51 above, that the reconsideration decision failed to apply paragraph 4.126 of the guidance in circumstances where what had been pointed out was a failure to follow the guidance, rather than any additional evidence having been provided. It therefore follows from my conclusions on grounds 2, 3 and 5 above that the reconsideration was unlawful as it failed to engage with the lengthy representations which had been made about the failure to follow the statutory guidance, which I have found to have merit.[80]Conclusion – I have reached the firm conclusion that the reasonable grounds decision cannot stand in this case and must be quashed, and the reasonable grounds decision taken afresh.