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Public law and Regulation

Case reports and guidance on public law and professional regulation issues

10 FEB 2016

R (on the application of FK) v Secretary of State for the Home Department [2016] EWHC 56 (Admin)

Joseph Tomlinson

University of Manchster

R (on the application of FK) v Secretary of State for the Home Department [2016] EWHC 56 (Admin)

Immigration - Deportation - Application of Policy - Trafficking Victim

Where a policy had been adopted in relation to  the treatment of claims by persons who had potentially been victims of  trafficking, it was an error of law not to follow and apply that policy unless  there were reasonable grounds to do so and an explanation was provided. 

 18 January 2016

Administrative Court

Dove J

1. The Claimant was originally from Pakistan. While in Pakistan, she had been left in destitution by the death of her husband and subsequently raped by a property dealer, who deprived her of her land.

2. The Claimant then responded to an advertisement to be the wife of a Pakistani man living in the UK, subsequently entering the UK on a false passport. No marriage resulted. Instead, the Claimant was forced to provide sex and housework services for a period of three months.

3. During this period, the Claimant was directed to claim benefits, which led to the discovery of the Claimant’s false passport. She subsequently claimed asylum, and was also convicted of identity document fraud and imprisoned. The result of the conviction was that the Defendant Secretary of State signed a deportation order against her.  The Claimant then appealed against the order.

4. In the course of the appeal, an officer of the Defendant identified the Claimant as a potential victim of trafficking, and she was then diagnosed with post-traumatic stress disorder.

5. In the face of an expert report identifying the Claimant as a victim, the Defendant did not accept the Claimant's account of events as it possessed inconsistences and she was not forthcoming with information.

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ISSUE:

6. The claimant sought judicial review of the Defendant's refusal to recognise her as a victim of trafficking on the basis that the Defendant had failed to apply her own policy ("Victims of human trafficking – competent authority guidance") vis-à-vis the consistency and delay in disclosure of the Claimant’s account.


DETERMINATION:

7. The application was granted.

8. Where a policy had been adopted in relation to the treatment of claims by persons who had potentially been trafficked, it was an error of law not to follow and apply that policy unless there were reasonable grounds to do so and an explanation was provided.

9. The relevant guidance required other aspects of the Claimant's evidence to be considered before factors such as inconsistency and delay in disclosure could be relied upon as the sole basis for the determination.

10. The guidance had not been appropriately applied in relation to whether or not other factors were present that could have led to the inconsistencies or delay in disclosure and explained it without those features being an indicator of the claimant being an unreliable witness. Moreover, such relevant factors were present in the Claimant’s case e.g. she had been subject to extensive abuse. Significantly, the Claimant’s diagnosis for post-traumatic stress disorder was not considered in the assessment of credibility. The Defendant therefore failed to apply ITS own guidance in relation to the findings concerning the Claimant’s credibility.

11. The Defendant also failed to properly explain why those aspects did not override the findings in relation to inconsistency and delay of disclosure. Moreover, there was no reason for the Defendant to doubt the Claimant’s credibility on the basis that she did not claim to be a victim of trafficking until after an adverse immigration decision as it was an official of the Defendant who identified her as a potential victim.

12. The Defendant's decision was thus quashed.


KEY PARAGRAPHS: [27]; [30-31]; [34-35].

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