Dunshou He v Secretary of State for the Home Department [2018] CSOH 103

Dunshou He v Secretary of State for the Home Department [2018] CSOH 103 concerned a judicial review by a Chinese national of the respondent’s decision that there were no reasonable grounds to suspect he was a victim of human trafficking; the Outer House refused the petition.

Mr He claimed to have fled China to escape authorities who suspected him of breaching the one-child policy. He said he approached a person, Aming, who arranged his travel to Europe in exchange for work to repay travel costs of about £36,000. He claimed that once in Ireland he was under Aming’s control and forced to work in a number of Chinese restaurants. On 1 March 2018 the respondent, acting as a Competent Authority under the National Referral Mechanism, decided at the reasonable grounds stage that his credibility was so undermined by inconsistencies in his accounts that his claim to have been trafficked could not be accepted.

Lord Armstrong set out the legal context. The UK ratified the Council of Europe Convention on Action against Trafficking in Human Beings on 17 December 2008. Human trafficking is defined by Article 4(a) of that Convention and the 2000 Palermo Protocol as recruitment, transportation, transfer, harbouring or receipt of persons by means of threat, force, coercion, abduction, fraud, deception, abuse of power or of a position of vulnerability for the purpose of exploitation. Exploitation includes exploitation of prostitution, other sexual exploitation, forced labour or services, slavery, servitude or removal of organs. It was accepted that the essence of trafficking comprised an action, achieved by a means, for the purpose of exploitation. The National Referral Mechanism operates in three stages. A first responder, such as the police, refers a suspected case to a Competent Authority. That authority conducts a reasonable grounds test designed to filter potential victims. If reasonable grounds exist, a substantive conclusive grounds decision is taken. The test to be applied at the reasonable grounds stage is whether the statement “I suspect but cannot prove” that the person is a victim of trafficking is true, and whether a reasonable person having regard to the information before the decision-maker would think there are reasonable grounds for that belief. Home Office guidance of 21 March 2016 states that in assessing credibility the authority should focus on material facts rather than minor or peripheral ones; that the level of detail and inclusion of sensory details is relevant; and that mitigating circumstances such as trauma, inability to express oneself, mistrust of authorities, feelings of shame and painful memories must be taken into account.

The respondent identified inconsistencies in Mr He’s accounts. On 15 November 2017 he told an immigration officer he had a wife and a twenty-year-old son in China and that his parents also lived there. On 18 January 2018 he told British Transport Police that his wife had left him and no longer lived in China, that he had three children remaining who were cared for by his father, and that his mother had died while he was in the UK. He claimed to be completely under Aming’s control yet said he had attended the Chinese Embassy and obtained a passport, contrary to what might be expected of someone wanted by the Chinese government. On 15 November 2017 he said he flew from China to Paris then to London. On 18 January 2018 he said he travelled from China to Hong Kong by car, climbed mountains, flew from an airport there to France, then travelled onward to Ireland in a container on a boat.

Mr Forrest submitted first that the respondent failed to apply the correct standard. The “I suspect but cannot prove” test was much less stringent than proof beyond reasonable doubt or on the balance of probabilities. By assessing credibility as he did, the respondent applied the test too vigorously. Second, the decision revealed a fundamental misunderstanding of when Mr He left China. Although his position was that he left China in about 2007 or 2008, the decision noted that he came to the UK at that time. His first destination was Ireland, not the UK, as was apparent from his claim to have moved from Ireland to the UK in April or May 2017 and was consistent with the 18 January 2018 interview. That misunderstanding undermined the whole decision. Third, the respondent erred in characterising the petitioner as having “willingly” travelled to Ireland and the UK. That was not justified when his true position was that he had been deceived into travelling and exploited by what became forced labour. Fourth, in assessing credibility the respondent erred by attaching undue weight to inconsistencies. This was contrary to the Home Office guidance that it is generally unnecessary and sometimes counter-productive to focus on minor or peripheral facts not material to the claim. The inconsistencies relied upon relating to his mother’s death, the extent of control by another, whether he entered the UK or Ireland first, the management of the business, his medical condition, his dealings with phone numbers, the cost of his journey and the extent to which he feared for his life were of that minor type. Further, the implicit assumption that the petitioner could not be a victim because he had attended the Chinese Embassy was not justified. The respondent failed to determine the true factual position and failed properly to take into account the need to understand “the many subtle ways an individual can fall under the control of another”, citing CN v United Kingdom (2013) 56 EHRR 24 at paragraph 80. Fifth, the respondent failed to take into account mitigating reasons which might explain inconsistencies. It was necessary to take into account general indicators for trafficking such as fear or anxiety, conduct as if instructed by another, restriction of movement, limited contact with family and ignorance of addresses, as well as indicators of forced or compulsory labour such as withholding of wages, dependence on employer, imposed accommodation and deception. Having regard to all these matters, the respondent erred by failing to conclude there were reasonable grounds for suspecting trafficking.

Mr Maciver responded first that the respondent applied the correct test, as was expressly stated on the last page of the decision which stated that it was not accepted to the low standard of proof “I suspect but cannot prove” that Mr He was trafficked from China to Ireland or within the UK for forced labour or forced criminality. Second, Mr He had in fact given two conflicting accounts of his travel from China. The decision accepted and noted, as recorded at the 18 January 2018 interview, that he had been in Ireland for some ten years before travelling to the UK. However, when interviewed on 15 November 2017 following his arrest, he had indicated he flew from China to the UK via Paris. Third, the question was whether, applying the appropriate test, there was room for suspicion that the three aspects of the definition of trafficking were met. In considering forced transportation, the description of the petitioner as having “willingly” travelled from China was an accurate reflection of his claim. On his own account he actively sought out the agent who could facilitate his travel. That he travelled willingly was a legitimate conclusion. One of the three branches of the definition was therefore not met. Fourth, the assertion that the respondent erred by attaching undue weight to inconsistencies amounted only to disagreement with the conclusion. Although there were subtle ways to exert control, the respondent’s conclusion drawn from the fact that Mr He voluntarily attended the Chinese Embassy was not unreasonable. It was not necessary for the respondent to ascertain the true underlying factual position. The respondent was entitled to draw inferences from the several examples of significant inconsistencies. Fifth, the respondent expressly considered whether there were mitigating factors and concluded there were none. As the Competent Authority, that was a conclusion the respondent was entitled to reach on his own assessment. Reliance on indications identified by the police at the first stage amounted to no more than disagreement with the respondent’s findings.

Lord Armstrong was not persuaded that the decision should be reduced on the submitted grounds of irrationality or inconsistency. The respondent was entitled to assess the petitioner’s credibility when considering whether, applying the correct test to the accepted definition, there was scope for suspicion that he had been a victim of trafficking. Given the nature of the test, there was no requirement on the respondent to ascertain the true factual position. His Lordship was satisfied that there was adherence to the relevant Home Office guidance. The inconsistencies concerning the petitioner’s name, the composition of his family, the route of his travel from China, the timing of his arrival in the UK, his medication and the circumstances of his claimed control by others were, viewed cumulatively, significant matters which the respondent was entitled to take into account. Assessing the matter in the round, Lord Armstrong found that the decision, which was comprehensive and extended to ten pages, provided adequate, cogent and rational reasons. On the basis of the information available, the conclusion reached by the respondent was one which was legitimately open to him and one which he was entitled to reach. His Lordship repelled the petitioner’s plea-in-law, sustained the respondent’s third plea-in-law and refused the petition.

In short, the decision that there were no reasonable grounds to suspect the petitioner was a victim of human trafficking was held to be rational and in accordance with the correct test, and was not reduced.

CN v United Kingdom (2013) 56 EHRR 24