CGW, R (on the application of) v The Secretary of State for the Home Department [2026] EWHC 858 (Admin)

[2026] EWHC 858 (Admin)AC-2025-LON-001425
IN THE HIGH COURT OF JUSTICE
KING’S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 13 April 2026
Before
ALAN BATES(Sitting as a Deputy Judge of the High Court)THE KING(On the application of CGW)
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Emily Wilsdon (instructed by Irwin Mitchell LLP) for Claimant.Joshua Yetman (instructed by the Government Legal Department) for Defendant.Hearing Hearing date: 13 January 2026
Approved JudgmentThis judgment was handed down remotely at 2pm on 13 April 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................DHCJ ALAN BATES

THE DEPUTY JUDGE:

[1]This case is about the standard of inquiry, consideration and reasoning to be expected of the Defendant when she takes a negative ‘Conclusive Grounds’ decision under the Modern Slavery Act 2015 (“MSA 2015”) rejecting an individual’s claim to be a victim of modern slavery.

FACTUAL BACKGROUND

[2]In the early hours of the morning on 6 July 2023, a lady contacted the police to report something odd that had happened to her. She had been approached by a gentleman whom she did not know and who apparently did not speak English. He had handed her a letter from TV Licensing bearing the address of a particular property, and used the Google Translate mobile phone app to tell her that(i) the property was being used for growing cannabis, and(ii) someone was “stuck” there, unable to leave. The lady gave the Police the property address shown on the letter.[3]Police officers were promptly dispatched to the property. This was at around 3 o’clock in the morning, so it would still have been dark. Whilst they were outside the property, the police officers could see someone in the upper window who was gesticulating to show he did not have a key and could not get out. The officers forced entry to the property and found within it many cannabis plants and the Claimant. The Claimant is a man whose mother tongue is Vietnamese and who speaks very little English. He was arrested on suspicion of being involved in growing cannabis and taken to a police station. Later the same day, during daylight hours, police officers visited the property again. They counted around 200 cannabis plants and documented the presence of high intensity lighting and other equipment for growing cannabis. The estimated value of the cannabis was £225,000.[4]On the same day, police officers interviewed the Claimant. He said he had been held in the property against his will and forced to carry out, unpaid, the work of tending the cannabis plants. The property was, he said, the latest of a series of cannabis farms to which he had been taken and was then unable to leave.[5]His account of the events that had led to him being forced to work in cannabis farms began in 2018, when he left Vietnam and travelled, via Thailand and Malaysia, to Turkey. He had subsequently travelled to Greece, then Italy, before reaching Germany, where he had, for around 2 years, worked without pay, receiving only accommodation and food. He had then travelled to France, from which he then made his journey to the United Kingdom on a small boat in May 2021. Upon arriving in the United Kingdom, he had claimed asylum and was accommodated in a hotel by the Home Office (presumably under s.95 of the Immigration and Asylum Act 1999).[6]Whilst he was living in that hotel accommodation, he was approached by people who said they could offer him work. He expressed interest in this, and he was then picked up in a car by some men and driven away to a house where he was given food and some clothes. He was then transported to a house that was being used for growing cannabis. From then on, he was held against his will and put to work tending cannabis plants. He said he had made attempts to escape but without success. He also said he had been subjected to violence by the people who were controlling him. Such violence included beatings, as well as an occasion when glass was used to cut him.[7]When the police officers found him at the property, he had in his possession a mobile device that he said had been given to him by the people controlling him. The device was examined by the police and found to contain evidence of his having previously tried to contact a police force via a live chat service.[8]The police decided on the same day that the Claimant should be treated as a victim of crime, no further action should be taken against him, and he should be referred to the modern slavery National Referral Mechanism (“NRM”). He was subsequently transferred to the care of the Salvation Army, which is one of the agencies that provides care and support for victims of modern slavery.[9]The NRM involves two decision-making stages by which the Defendant decides whether an individual is a victim of modern slavery: a ‘Reasonable Grounds’ stage and a ‘Conclusive Grounds’ stage. On 24 August 2023, a section within the Home Office called the Immigration Enforcement Competent Authority (“IECA”) made a positive Reasonable Grounds decision relating to the Claimant, finding that there were reasonable grounds for believing that he was a victim of modern slavery (the “RG Decision”).[10]The RG Decision was recorded in a ‘decision minute’ (the “RG Decision Minute”): a Home Office internal document that was marked “Not for external disclosure unless authorised”. The RG Decision Minute was not provided to the Claimant except as part of disclosure in the present judicial review proceedings pursuant to the Defendant’s duty of candour.[11]The RG Decision Minute contained the following text, which appears to have been intended as a prompt to the Home Office officials who would be dealing with the case at the next stage of the NRM process:
“No credibility concerns have been identified. Further information is required for [Conclusive Grounds] stage and need addressing at case prep stage. The further information required is: How did you meet the exploiter Are you able to provide any descriptions/details of the exploiters How were you taken to the address by the exploiters What were you specifically forced to do Did the exploiters [visit] the house during the time of exploitation How many exploiters did [you] meet What were the nature of the threats you received How many hours a day were you forced to work Did you get paid for the work Any further disclosures made regarding the exploitation Did you have any personal/travel documentation Did you sustain any injuries from the exploiters

See ‘To Do’ tasks I have added.”

The further information required is: How did you meet the exploiter Are you able to provide any descriptions/details of the exploiters How were you taken to the address by the exploiters What were you specifically forced to do Did the exploiters [visit] the house during the time of exploitation How many exploiters did [you] meet What were the nature of the threats you received How many hours a day were you forced to work Did you get paid for the work Any further disclosures made regarding the exploitation Did you have any personal/travel documentation Did you sustain any injuries from the exploiters See ‘To Do’ tasks I have added.”[12]On 15 November 2024, the IECA sent an email to the solicitors who were at that time understood to be acting for the Claimant. The email stated that the IECA “require[d] further information to help reach a Conclusive Grounds … decision on [the Claimant]’s case” and asked that the Claimant provide, inter alia, a completed Personal Circumstances Questionnaire and, “if [the solicitors] deem[ed] it appropriate to do so”, a witness statement. The email stated that the deadline for providing the requested material was 29 November 2024. A reminder email was sent to the solicitors on 22 November 2024.[13]Attached to the 15 November 2024 email was a document headed “Witness Statement Guidance”. That document stated as follows:
“A witness statement is a narrative of your modern slavery experience. Its purpose is to provide support to the IECA in reaching a substantive decision on your NRM referral. … The statement you provide should be in your own words. You should state facts that are within your own personal knowledge and, where possible, follow the order of events. You may wish to consider the following questions when writing your account: How did your modern slavery experience begin? What happened? Where? When? Who was involved? What factors prevented you from leaving the situation? When did you leave the situation? How did you leave the situation? Your statement should be written in English and signed by you. If you do not feel confident writing the statement in English, the statement can be written with assistance from your representative (such as your legal representative or support worker). In this circumstance your statement must be read back to you, so that you understand and agree with what has been written, be dated and be signed by you. Please also include the details of the person who assisted you with the statement.”
How did your modern slavery experience begin? What happened? Where? When? Who was involved? What factors prevented you from leaving the situation? When did you leave the situation?

How did you leave the situation?

[14]On 29 November 2024, the IECA was provided with a completed Personal Circumstances Questionnaire and a witness statement from the Claimant. Both of those documents were written in English, having apparently been prepared by a specialist support worker who was assisting the Claimant. A further witness statement from the Claimant, again in English, was provided on 6 December 2024. The two witness statements were both short ones. Read together, they set out in succinct terms his account of the history of how he had come to arrive in the United Kingdom, and of his having subsequently been held against his will and made to work on cannabis farms until he was found by the police officers in July 2023.[15]On 4 February 2025, the IECA, on behalf of the Defendant, issued to the Claimant a negative Conclusive Grounds decision, finding that there were “not considered to be Conclusive Grounds to believe that [he was] subjected to modern slavery” (the “CG Decision”). The Claimant’s judicial review claim challenges the lawfulness of the CG Decision. His grounds of challenge are as follows: - Ground 1: Failure to give reasons as to why the Claimant was not a victim of trafficking - Ground 2: irrationality - Ground 3: failure to make sufficient inquiry and imposing too high a threshold for evidence - Ground 4: failure to adhere to published guidance and/or irrationality in assigning the case to the IECA - Ground 5: breach of Article 4 of the Convention Rights in Schedule 1 to the Human Rights Act 1998 (“HRA 1998”) and/or the European Convention on Action Against Trafficking in Human Beings 2005 (“ECAT”) (a Convention to which it was the Defendant’s stated policy to adhere).

GROUNDS 1, 2 AND 3

[16]In my view, Grounds 1, 2 and 3 all go to essentially the same question: Do the reasons given for the CG Decision show that it was taken in accordance with the Defendant’s public law duty to carry out her decision-making rationally, both in terms of the procedure she followed (i.e. making such inquiry as rationality required and properly applying her own guidance) and the substance (i.e. the reasons in the decision must ‘add up’ so as to be capable of rationally justifying the conclusion reached)? It is therefore convenient to consider Grounds 1, 2 and 3 together.[17]S.49(1)(d) of the MSA 2015 (as amended by the Nationality and Borders Act 2022) requires the Defendant issue guidance about “arrangements for determining whether a person is a victim of slavery or human trafficking”. Pursuant to s.49(1A), the guidance must provide that such a determination “is to be made on the balance of probabilities”.[18]At the time material to the present case, the Defendant was complying with that duty by publishing the document “Modern Slavery: statutory guidance for England and Wales (under s.49 of the Modern Slavery Act 2015) and non-statutory guidance for Scotland and Northern Ireland”, version 3.12, dated 16 January 2025 (the “Guidance”). The Guidance set out that:(1) The term “modern slavery” encompasses “human trafficking” as well as slavery, servitude and forced or compulsory labour. There are three components of “human trafficking” of an adult: (i) action (i.e. recruitment, transportation, transfer, harbouring or receipt, which includes an element of movement whether national or cross-border); (ii) means (i.e. the action has been achieved by threat or use of force, coercion, abduction, fraud, deception, abuse of power or vulnerability); and (iii) purpose of exploitation (i.e. the action was done for the purpose of sexual exploitation, forced labour or domestic servitude, slavery, financial exploitation, or the harvesting of organs).(2) There are two “competent authorities” within the Home Office responsible for taking Reasonable Grounds and Conclusive Grounds decisions: one is the IECA and the other is the Single Competent Authority (“SCA”).(3) The standard of proof to be applied in decision-making is the balance of probabilities (Guidance, paragraphs 7.10 and 14.134-14.136).(4) The competent authority “must make every reasonable effort to request all available information that could prove useful in establishing if there are Conclusive Grounds” (Guidance, paragraph 14.138). “Where there is insufficient information to make a Conclusive Grounds decision on the balance of probabilities, the relevant competent authority should gather additional information until it is able to make a decision” (Guidance, paragraph 14.162).(5) “Following a Reasonable Grounds decision, the relevant competent authority may ask the potential victim (or their legal representative) to provide any further evidence or information as early as possible to help with the Conclusive Grounds decision making process. At any point, the relevant competent authority may request that this information is provided within (a minimum) 14 days” (Guidance, paragraph 14.138).(6) Sufficient information will normally be available from third parties involved in the individual’s case, such as the police and support workers (Guidance, paragraph 14.149). Where, however, there are questions that need to be put to the potential victim in order to gather further information, the authority “must consider submitting questions in writing, either via the police, the support provider (in adult cases), or the local authority (particularly in cases involving children)” (Guidance, paragraph 14.150, see also 14.154).(7) “Where all other sources have been exhausted and there is still insufficient information available to make a decision fairly, … an interview is required” (Guidance, paragraph 14.155).(8) “Where information is available but is contradictory the relevant competent authority must consider whether further information is required to permit a decision to be made fairly. If further information is required from the potential victim or if they need to be asked to account for inconsistencies then the relevant competent authority should consider whether the potential victim needs to be interviewed or whether they can fairly be asked to account for inconsistencies by other methods, such as in writing” (Guidance, paragraph 14.152).[19]Where a public authority has adopted a policy setting out how it will take a certain type or category of decisions in the exercise of its statutory powers, it will generally be required to apply that policy when taking individual decisions, departing from it only for good reason: Mandalia v Secretary of State for the Home Department [2015] UKSC 59, [2015] 1 W.L.R. 4546, at [29]-[31], per Lord Wilson (with whom the other Justices agreed). In my view, this principle applies with particular force in a context, such as the present, where the policy is set out in guidance that the decision-maker was required by statute to issue for setting out the arrangements for the taking of such decisions.[20]Given the potential significance and consequences of a positive or negative Conclusive Grounds decision for the individual, a negative decision must be supported by reasons that engage fully with the case advanced and be based on a careful and conscientious analysis of the relevant factors and evidence: see R (SM) v Secretary of State for the Home Department [2024] EWHC 1683 (Admin) at [66]-[67]; and R (MN) v Secretary of State for the Home Department [2020] EWCA Civ 1746, [2021] 1 W.L.R 1956 (“MN”) at [242]-[243].A court reviewing the lawfulness of a negative Conclusive Grounds decision will examine the reasons given for the decision, so as to assess whether they show that the decision satisfies that standard.[21]In argument before me, the Claimant’s Counsel, Ms Wilsdon, placed considerable emphasis on the level of scrutiny to be applied by the court being a heightened, or more rigorous, level of scrutiny than standard Wednesbury rationality review. She relied particularly on Fordham J’s judgment in R (Alnoor) vSecretary of State for the Home Department [2025] EWHC 922 (Admin), [2025] 4 W.L.R. 57, another challenge to a negative Conclusive Grounds decision. At [27]-[28], Fordham J noted that, pursuant to the Court of Appeal’s decision in MN, such a decision was to be subjected to “anxious scrutiny” by the court, and he provided a description of what this form of “adjusted reasonableness review” involves. (I note, in passing, that another helpful discussion of what “anxious scrutiny” means in practice was provided by Chamberlain J in R (KP) v Secretary of State for Foreign, Commonwealth and Development Affairs [2025] EWHC 370 (Admin), at [76]-[77].)[22]As part of that description, Fordham J, again citing MN, stated that a “practical consequence of this closer scrutiny” was 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”. As Fordham J noted, those words were derived from the asylum case R (YH (Iraq)) v Secretary of State for the Home Department [2010] EWCA Civ 116, [2010] 4 All ER 448, per Carnwath LJ at [24]. Mr Yetman, who appeared before me on behalf of the Defendant, submitted that the phrase “every factor which tells in favour of the applicant” should be understood consistently with the way it was understood by Cranston J in R (BG) v Secretary of State for the Home Department [2016] EWHC 786 (Admin) at [58]:
“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.”
[23]In my view, neither Carnwath LJ nor Fordham J were suggesting that a decision subject to “anxious scrutiny” will be condemned as inadequately reasoned merely because the decision-maker’s reasons have not mentioned some point, however minor or trivial, which could be seen as tending to support the applicant’s case. “Anxious scrutiny” by the court is the logical corollary of a decision being one that was of such practical importance or significance for the individual that a rational and fair-minded decision-maker would have undertaken the decision-making process with particular care and diligence, being anxious not to refuse the individual’s application unless that outcome was the correct one. Such a decision-maker would not necessarily recite absolutely every point that could be made in the individual’s favour. But the rational decision-maker would be anxious to look for any factor that could potentially be significant in terms of materially contributing, alongside other factors, to tipping the scales in favour of granting the application. In other words, the decision-maker’s reasons must show that she was anxious not to miss anything that could potentially make a difference in the applicant’s favour.

My assessment of the reasons given for the CG Decision

[24]In my judgment, the reasons given in the CG Decision are plainly deficient. The reasons address each of the three components of “human trafficking” of an adult (see paragraph 18(1) above) in essentially the same way.(1) First, the reasons recite what would, pursuant to the Guidance, need to have happened to the Claimant in order for that component to be made out.(2) Secondly, the reasons briefly summarise what the Claimant says happened to him which fulfils the component.(3) Thirdly, the reasons state a conclusion that “therefore” there is “insufficient information available to make the assessment that” the Claimant was subjected to treatment constituting that component. That conclusion is, in each case, a non sequitur from the text that preceded it. That is because the Claimant’s account of what happened to him, which the reasons briefly summarise, would, if true, appear sufficient to constitute fulfilment of the component. The reasons do not say that the Claimant’s account was found not to be credible. Nor do they say why the information that is available is “insufficient”.[25]The preceding paragraph suffices, in my judgment, to show that the reasons in the CG Decision simply do not provide rational justification for the conclusions reached. That is my finding despite Mr Yetman’s valiant efforts to defend the CG Decision’s reasoning.[26]The best of his arguments was, in my view, his reliance on the paragraphs of the reasons that preceded the sections considering the three components of “human trafficking”. Those paragraphs stated:
“Our reasons for this decision are as follows: Consideration has been given to the guidance in relation to the level of detail it is reasonable to expect to be provided in support of an account of trafficking. The level of detail with which a potential victim presents their claim is a factor when the Competent Authority assesses credibility. It is reasonable to assume that a victim giving an account of their modern slavery experience will be more expressive and more likely to include sensory details (for example what they saw, heard, felt or thought about an event) than someone who has not had this experience. Where there is insufficient evidence to support a claim that the individual is a victim of modern slavery the Competent Authority is entitled to question whether the reasonable grounds or conclusive grounds threshold is met. However, they must also consider whether they need more information. Following the Reasonable Grounds decision, the Home Office requested further information from your [solicitors] on 15/11/2024 via email. [Your solicitors] responded via email on 29/11/2024, they provided a Personal Circumstances Questionnaire and a Witness Statement. However, it is considered that the information available on which to consider your case is deemed to be insufficient for the account to meet the balance of probabilities. The case summary above provides the level of detail available in your account. It is considered that this is insufficient to meet the standard of proof, on the balance of probabilities.”
[27]In my view, what those paragraphs are saying is essentially that the information provided by the Claimant had not provided a “level of detail” sufficient “to meet the standard of proof”. The closest the paragraphs come to explaining precisely why the “level of detail” was found to be “insufficient” was the generalised statement that it was “reasonable to assume that a victim giving an account of their modern slavery experience will be more expressive and more likely to include sensory details (for example what they saw, heard, felt or thought about an event) than someone who has not had this experience.” Those paragraphs are, in my judgment, of no assistance in supporting the lawfulness of the CG Decision, for the following reasons:(1) The reasons given in the CG Decision do not say that the Claimant’s factual account lacked “sensory details” and that, in consequence, an aspect of his factual account was found by the Defendant, on the balance of probabilities, not to be credible. Accordingly, the reasons provide no link between any supposed insufficiency of “sensory details” and the rejection of the Claimant’s factual account.(2) In any event, the CG Decision could not properly have found any aspect of the Claimant’s account to be untrue without considering the totality of the evidence relevant to that aspect. This was a case in which there was evidence that the Claimant had been found by the police following efforts he had made to contact them, directly or indirectly. The police had found him in a property from which he was apparently unable to escape without their assistance. That property was plainly being used as a cannabis farm forming part of a sophisticated criminal enterprise. These various factual circumstances together constituted powerful circumstantial evidence that the three components of human trafficking – i.e. action, means, and purpose of exploitation – were all made out.(3) In order for the Defendant rationally to find that, notwithstanding these circumstances, there was insufficient evidence to establish, on the balance of probabilities, the truth of the Claimant’s assertions that he had been held against his will and exploited in a criminal enterprise, then it was incumbent on the Defendant to explain why. Did the Defendant think, for example, that the Claimant had never been held against his will, and that the circumstances in which the police came to discover him at the cannabis farm, as well as the evidence of his prior attempts to contact the Police himself using live chat on a mobile device, were all part of a highly elaborate, sophisticated scheme to construct a false claim to be recognised as a victim of modern slavery? If so, then it was surely incumbent on the Defendant to have said so in her reasons for the CG Decision. She did not do so.(4) Even if the Defendant had been justified in taking the view that a lack of “sensory details” meant that there was “insufficient evidence” to enable a positive Conclusion Grounds decision to be made, it was not compatible with either the Guidance, or public law standards of rational decision-making in this context, to take a negative Conclusive Grounds decision on that basis. Rather, the Defendant should have sought further information from the Claimant, whether by asking him questions in writing, or by inviting him to an interview. The Claimant was never put on notice that his account was thought to lack “sensory details”. The witness statement guidance document sent to his solicitors (see paragraph 13 above) did not indicate that an applicant’s witness statement was expected to include such subjective details (rather than simply the facts of what happened).(5) Further, whilst I acknowledge that the two witness statements he provided were short ones, it must be remembered that those witness statements were written for him in English, which was not a language he could speak or write. Rationality required the Defendant to recognise, in these circumstances, that the level of detail provided in the Claimant’s witness statements was likely to have been determined largely by the support worker or other person who assisted him by writing the witness statements. The level of detail in the witness statements was therefore unlikely to be fairly reflective of the level of detail (including “sensory details”) he would have been able to provide if giving his account orally in an interview, speaking in his own language.[28]Mr Yetman also sought to defend the CG Decision on the basis that the various references within the reasons to there being “insufficient information available to make the assessment” in respect of each component of human trafficking had to be read with an earlier section of the CG Decision document in which the factual accounts given by the Claimant to the police and other agencies had been summarised. Mr Yetman submitted that the text within that earlier section showed that the Claimant had given different – and apparently inconsistent – factual accounts at different times. For example, when interviewed by the police, he had said that the person who had approached him whilst he was staying in the asylum hotel was a male, but in his witness statements he had referred to being approached by a Vietnamese lady or by “some people”. In my judgment, this argument does not improve the Defendant’s position in these proceedings. That is so for two reasons:(1) Nowhere in the reasons in the CG Decision does the Defendant find that the Claimant’s account was not credible by reason of any such alleged inconsistencies. Accordingly, if the CG Decision was in fact based on any such finding, then the reasons given in that decision did not reflect the true reasons for it. In my judgment, that would itself suffice to render the CG Decision unlawful.(2) If and insofar as the Defendant was concerned that there were apparent inconsistencies in the Claimant’s accounts which caused the Defendant to doubt the credibility of those accounts, then the Defendant should, in accordance with her Guidance, have put that concern to the Claimant, whether in writing or by way of an interview, and invited him to respond. He might well have been able to offer a reasonable explanation for the supposed inconsistency (such as the explanation he has now provided in his witness statement produced for the purposes of these proceedings).[29]The Defendant also relied on a witness statement she filed in these proceedings: a short witness statement of Joel McGivena, a Deputy Chief Caseworker in the IECA. That witness statement includes the following text: “4. … The Claimant’s account was considered against [each of the three components of “human trafficking”] and the required standard of proof, and on each [component] was considered insufficient.[5]The degree to which an account is considered detailed depends on the level of information provided in relation to, but not exclusively, the nature of the exploitation, events, locations, and perpetrators of the described exploitation. The Claimant provided limited information regarding the perpetrators and locations of the claimed exploitation, as well as the timeframe of the claimed exploitation.[6]I am of the view that on the facts of this case even if there are alleged errors in the reasoning, it is highly likely that absent those errors the outcome would have been the same.”[30]In my judgment, Mr McGivena’s witness statement does nothing to support the Defendant’s case. In that regard:(1) The witness statement is an attempt to introduce an entirely new basis for finding in the CG Decision that the Claimant’s account was “insufficient”, namely that he had not provided a sufficient level of information about “the nature of the exploitation, events, locations, and perpetrators”, as he had provided only “limited information regarding the perpetrators and locations of the claimed exploitation, as well as the timeframe of the claimed exploitation”. This basis for finding the information provided by the Claimant to have been “insufficient” is different from the basis stated in the CG Decision document (namely, the alleged insufficiency of “sensory details”). In my judgment, this is not mere elucidation of the reasons set out in the CG Decision; rather, it amounts to an impermissible attempt to advance new reasons.(2) It appears, from reading the witness statement, that the officials taking Conclusive Grounds decisions on behalf of the Defendant are doing so on the understanding that the individual will not have satisfied “the required standard of proof” unless they have provided “detailed” information about “the nature of the exploitation, events, locations, and perpetrators”. But such an approach is legally wrong. There is no minimum level of detail that must be provided in order for a positive CG Decision to be made. Rather, pursuant to s.49(1)(d) and (1A), the proper approach is for the decision-maker to determine, on the balance of probabilities, whether the individual is a victim or human trafficking or slavery. That determination should be made based on the totality of the available evidence (including, for example, circumstantial evidence, such as police information that the individual was found on a cannabis farm in a locked building for which he apparently had no key, and that he had apparently made more than one ingenious attempt to inform the police of his location and that he needed help).(3) The assertion in the witness statement that, even if there were “errors in the reasoning” in the CG Decision, it is “highly likely that absent those errors the outcome would have been the same”, is telling. Mr McGivena has apparently considered himself able properly to give that evidence without making any attempt to explain how or why he can say this despite the obviously strong circumstantial evidence that the Claimant was being held against his will in a cannabis farm. That circumstantial evidence is a factor that any rational decision-maker would recognise as important evidence supporting a positive Conclusive Grounds decision. Mr McGivena’s evidence thus reinforces my impression that the Defendant’s officials are approaching their decision-making on the erroneous basis that Conclusive Grounds decisions should be negative unless the individual has provided “detailed” information about “the nature of the exploitation, events, locations, and perpetrators”.(4) Further, Mr McGivena appears to have given no thought to whether it was reasonable or realistic to expect the Claimant to be able to provide more information about matters such as the locations where he had been held. On the Claimant’s account, he had been trafficked between cannabis farms and had no control over where he was taken. The letter from TV Licensing appears to have been the means by which he was able to identity, and to provide indirectly to the police, the address of the property where the police subsequently found him.[31]For the reasons set out above, the Claimant’s Grounds 1, 2 and 3 all succeed. The reasons set out in the Decision do not enable the Claimant to know why he was not found to be a victim of human trafficking. Further, the CG Decision was irrational, given the strong circumstantial evidence in favour of the application, which was effectively ignored or irrationally accorded little or no weight. The Defendant also failed to make inquiries that the Guidance, as well as the Tameside duty (Secretary of State for Education and Science v Tameside MBC [1977] AC 1014), required her to make.[32]For completeness, I note that I found no merit in the Claimant’s point that the reasons in the CG Decision erroneously referred to the Claimant working “on a cannabis farm” (singular) for 2 years, whereas the Claimant’s account was that he had been moved between a number of different farms. It is clear from reading the relevant text in context that the decision-maker understood that the Claimant had worked on more than one farm and there was no confusion on that point.

GROUND 5

[33]I next address Ground 5, given that it is linked with Grounds 1 to 3. The Claimant’s case under Ground 5 is that, if any of Grounds 1 to 3 succeed, then he is a victim of trafficking whom the Defendant has failed to protect, and it follows that the Defendant is in breach of her duties of investigation and/or protection under:(i) Article 4 of the Convention Rights in the HRA 1998; and(ii) the ECAT.[34]The Defendant’s response to Ground 5 is that it does not arise, as she denies Grounds 1 to 3. That response does not assist the Defendant now that I have found for the Claimant on Grounds 1 to 3.[35]Article 4 of the Convention Rights protects the right not to be held in slavery or servitude, or to be required to perform forced or compulsory labour. As well as prohibiting States from holding people in slavery, Article 4 gives rise to positive duties for the State which include duties to investigate situations of suspected trafficking and to protect individual victims of trafficking: R (TDT) (Vietnam) v Secretary of State for the Home Department [2018] EWCA Civ 1935, [2018] 1 WLR 4922, [16]-[18], per Underhill LJ.[36]The Claimant in the present case was rescued from a cannabis farm by the police, given immediate assistance in the form of accommodation and other support, and received the positive RG Decision entitling him to further support. The police are likely to have sought to use the intelligence and evidence gathered from the cannabis farm to seek to track down the people behind that illegal enterprise. So this is not a case in which the State has failed either to investigate a situation of suspected trafficking or to provide protection to an individual victim.[37]In all the circumstances, I am not persuaded that the material that the Claimant has placed before the Court is sufficient to justify a finding that his Article 4 rights have been breached or that the Defendant has failed to comply with her duty under s.6 HRA 1998 to act compatibly with the Convention Rights. Although I have found the negative CG Decision to have been unlawful because the reasons given for it failed to meet applicable public law standards, this does not suffice, without more, to establish a breach of Article 4. There is no evidence before the Court establishing that the Claimant has, in consequence of the CG Decision, been left without material protection that he would have received had a lawful Conclusive Grounds decision been taken. Rather, the way that the Claimant’s case on breach of Article 4 has been put has been essentially limited to relying on the same matters as he advances under Grounds 1 to 3, and to assert that, for the same reasons, there has been a breach of Article 4. In my judgment, this way of alleging a breach of Article 4 is not legally sound. In order to establish a breach of an individual’s Convention Rights, it is necessary to focus on the treatment (such as a failure to provide protection) of that individual. It does not suffice that a public law decision as to what had happened to him, or his entitlement to a particular status, was flawed or has failed to meet the standards of decision-making arising from English public law principles and/or the defendant public authority’s published guidance.[38]Further, the courts should not, in my view, encourage the proliferation of grounds of challenge alleging breaches of Convention Rights in circumstances where those grounds add nothing of substance to the other public law grounds advanced for challenging a decision. In the present case, my conclusion under Grounds 1 to 3 that the CG Decision was unlawful would anyway suffice to afford the Claimant an effective remedy in respect of any arguable breach of Article 4 constituted by the Defendant’s failure to take a properly reasoned and rational Conclusive Grounds decision after making reasonable inquiries. It is not necessary or proportionate for the court to be asked to grant further relief, such as a declaration of a breach of Convention Rights, in respect of those same matters. I note that the relief sought in the Claimant’s Statement of Facts and Grounds does not include any claim for damages for breach of Convention Rights. Nor has he filed evidence to show he has suffered any material harm or loss such as might make it appropriate to award him any damages in the circumstances of this case.[39]I reach a similar conclusion in relation to the complaint that the CG Decision constitutes, or suffices to establish, a breach of the ECAT. Although the United Kingdom has signed and ratified the ECAT, it is an unincorporated treaty, and so the Claimant cannot rely directly on the ECAT as a source of rights in this Court. The basis on which he seeks to rely on the ECAT indirectly for the purposes of Ground 5 is that the Defendant’s stated policy position is that (subject to certain limited caveats) she will comply with ECAT, and so public law principles require her to do so. I note that the Defendant has developed and published the Guidance as a means of ensuring that the United Kingdom fulfils its international law obligations under the ECAT and that the Defendant herself acts consistently with those obligations. In the present case, the Claimant’s complaints about the inadequacies of the CG Decision all relate to failures by the Defendant to comply with the Guidance. It is not being said that the Guidance is itself, in some relevant respect, unlawful by reason of its failing properly to reflect the Defendant’s policy of adhering to the ECAT. In these circumstances, the Claimant’s reliance on an alleged breach of the ECAT as a distinct ground of challenge from Grounds 1 to 3 constitutes unnecessary duplication.[40]For the reasons set out above, Ground 5 is dismissed.

GROUND 4

[41]By Ground 4, the Claimant contends that it was unlawful that the CG Decision was taken by officials in the IECA rather than the SCA. The basis for this ground is paragraphs 4.13-4.15 of the Guidance. In those paragraphs, the Defendant explains that the IECA and the SCA are both tasked with recognising modern slavery victims following referrals under the NRM, but that the IECA is “responsible for a specific cohort of adult cases”. That cohort of cases consists of, inter alia, cases of individuals who are foreign national offenders or who are in immigration detention. “The SCA is the competent authority for all other cases referred to the NRM …. Where there are Home Office operational priorities relating to a cohort of cases, consideration will be given to operational handling being specific to (the) one competent authority those cases pertain to.”[42]On the face of the Guidance, it might reasonably have been expected that the Claimant’s case would be assigned to the SCA, not the IECA. His case did not fall within the “cohort of adult cases” for which the Guidance states that the IECA is responsible. He was not being prosecuted, and had not been convicted, of any criminal offence, and he was not in immigration detention. The Claimant contends that, in these circumstances, the assignment of his case to the IECA was contrary to the Guidance and thus unlawful. In support of that contention, the Claimant relies on R (TM (Kenya)) v Secretary of State for the Home Department [2019] EWCA Civ 784, [2019] 4 W.L.R. 109 (“TM (Kenya)”), [50], [57], as establishing that a public authority’s selection of the official who is tasked with exercising a particular function, or taking a particular decision, on behalf of the authority is, in principle, a matter amenable to judicial review.[43]In my judgment, it was not unlawful for decision-making on the Claimant’s case to have been undertaken within the IECA rather than the SCA. Neither of those “competent authorities” (a term used by the Defendant because it reflects terminology used in the ECAT) is established by legislation. Rather, they are simply operational units of the Home Office taking decisions on behalf of the Defendant and for which the Defendant is legally responsible. Although paragraphs 4.13-4.15 of the Guidance indicate the kinds of cases that will be allocated to be handled by the IECA, the reference in those paragraphs to “Home Office operational priorities relating to a cohort of cases” indicates room for flexibility for the Defendant to allocate cases between the two “competent authorities” in accordance with her operational priorities from time to time. In these circumstances, it was not a breach of public law standards for the Defendant to assign the Claimant’s case to her officials working within the IECA rather than her officials working within the SCA.[44]Public law principles require, as a general rule, that decision-makers adhere to their public policies with regard to how the decision-maker will exercise her statutory powers, in order to promote consistency in decision-making and avoid arbitrariness. But public law standards apply in a context-informed way. In my view, there is no reason why public law should hold the Defendant to her guidance in terms of which set of officials deals with a case, in circumstances where the procedures set out in the guidance were identical regardless of which officials were chosen.[45]For the avoidance of doubt, I see no realistic basis on which I could find that one set of officials was better than the other, so that the assignment of the Claimant’s case to the IECA is likely to have been the cause of the defective decision-making that I have found, under Grounds 1 to 3, occurred when the CG Decision was taken. In any event, whichever set of officials took the Reasonable Grounds decision and the Conclusive Grounds decision in the Claimant’s case, the Defendant’s legal responsibility for those decisions, and the legal standards that those decisions needed to meet, were the same.[46]For the reasons set out above, Ground 4 is dismissed.

CONCLUSION AND DISPOSAL

[47]For the reasons set out in this judgment, the claim for judicial review succeeds, albeit that I have not found for the Claimant on all his grounds of challenge. The CG Decision was unlawful and will be quashed. The Defendant must take a fresh Conclusive Grounds decision.[48]In my view, it is regrettable that the Defendant did not herself recognise at an earlier stage in the proceedings that the reasons given in the CG Decision could not withstand scrutiny, and agree to withdraw and retake the CG Decision. I note that Upper Tribunal Judge Church (sitting as a Judge of the High Court), when he granted permission to apply for judicial review, made the following observations:
“The way that the [CG Decision] is expressed could certainly be improved: the explanation of how the decision maker decided whether the [three components of human trafficking] were satisfied is most unsatisfactory …. The conclusion is not really a conclusion, as it doesn’t follow from what has gone before it. It is a non sequitur. In isolation, these passages appear to betray irrational decision making.”
[49]I am full of admiration for Counsel for both parties, each of whom argued the case with considerable learning and skill. Ultimately, however, I have found this case to be essentially a simple one, and concluded that the CG Decision must be quashed for essentially the same reasons as were provisionally indicated by Judge Church. Given the pressures on the court system and the costs of proceedings such as these to the public finances, it is important that public authorities give due consideration to whether each judicial review claim for which permission to apply for judicial review has been granted can realistically be defended.

Cited in 1 later judgment