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The Court of Appeal has handed down a significant judgment concerning the correct approach to determining whether an individual is a victim of human trafficking under the National Referral Mechanism.

The National Referral Mechanism (“NRM”) is the framework for identifying potential and actual victims of trafficking and modern slavery to ensure that they receive the necessary support, assistance and protection in the period after their identification. It was put in place in 2009 to give effect to the UK’s obligations under Council of Europe Convention on Action against Trafficking in Human Beings (“ECAT”) and the EU Anti-Trafficking Directive. The NRM involves a two-stage process: (1) an initial decision of whether there are “reasonable grounds” to believe that a person is a victim of trafficking; and (2) a “conclusive grounds” decision as to whether the person is in fact a victim of trafficking.

There were three issues common to the joined appeals:

1.     Is the “balance of probabilities” threshold the correct standard of proof to be applied by the decision-maker at the second stage of the NRM?

2.     What is the correct approach to expert evidence?

3.     What is the correct approach to the assessment of credibility?

Underhill LJ, giving the judgment of the Court, set out points of general application which arose from the issues.

As to the first issue, the Court found that the decision-maker did not err by applying the balance of probabilities test at the conclusive grounds stage. Underhill LJ concluded that Article 10 of ECAT provided for a “single identification process leading to a definitive decision which then attracts the substantive rights provided for in Chapter III”, where the purpose of the reasonable grounds stage was “simply to ensure that persons who may in due course be identified as victims of trafficking are not removed, and are assisted with their essential needs, pending that decision” (§92). The fact that duties under Article 12 involved an element of protection (e.g. the provision of secure accommodation so as to reduce the risk of a victim, or potential victim, being harmed by their traffickers or being re-trafficked) did not change the position (§94). The Anti-Trafficking Directive also did not require a different analysis (§98).

In respect of the second issue, the Court at §121 summarised the relevant principles which apply to expert evidence taken from doctors:

·       The decision whether the account given by an applicant is in the essential respects truthful has to be taken by the tribunal or the decision-maker on the totality of the evidence, viewed holistically.

·       Where a doctor’s opinion, properly understood, goes no further than a finding of “mere consistency” with the applicant’s account it is, necessarily, neutral on the question whether that account is truthful.

·       However, it is open to a doctor to express an opinion to the effect that his or her findings are positively supportive of the truthfulness of an applicant’s account (i.e. an opinion going beyond “mere consistency”); and where they do so that opinion should in principle be taken into account. 

·       Such an opinion may be based on physical findings or on an assessment of the applicant’s reported symptoms, including symptoms of mental ill-health, and/or of their overall presentation and history.

·       The weight to be given to any such expression of opinion will depend on the circumstances of the particular case. 

·       One factor bearing on the weight to be given to an expression of opinion by a doctor that the applicant’s reported symptoms support their case that they were persecuted or trafficked (as the case may be) is whether there are other possible causes of those symptoms.

As to the third issue, the tribunal or decision-maker must adopt a “single process” for assessing the credibility of the core account given by the potential victim, taking account of features which potentially call their credibility into question, such as incoherence, inconsistency or delay, alongside factors which may explain those features. It is not correct to identify the defects in the account of a potential victim and then to decide whether they can be excused or are mitigated by those factors (§§125-126).

The Court concluded that the decision-maker had adopted the wrong approach in relation to the assessment of MN and IXU’s claims and allowed both appeals.

A copy of the judgment is available here.

Sir James Eadie QC acted for the Respondent.

Tom de la Mare QC, Jason Pobjoy and Gayatri Sarathy acted (pro bono) for the Intervener, Anti-Slavery International, instructed by Deighton Pierce Glynn.

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