Court of Appeal to rule on the legal landscape for trafficking victims
Date posted: 9 July 2020
This week we are in the Court of Appeal pursuing very important legal arguments on behalf of our client, IXU, in a case which has the potential to change the legal landscape for trafficking victims. IXU is a trafficking victim but the SSHD refuses to accept this. Our Imogen Townley has acted for IXU since 2016 and has sadly had to obtain three High Court injunctions preventing IXU’s unlawful removal from this country by charter flight.
We are now challenging a negative Conclusive Grounds decision, that is, a formal decision taken under the National Referral Mechanism that IXU is not a victim of trafficking. Last year a challenge was dismissed in the Administrative Court and we appealed to the Court of Appeal. At Court of Appeal permission stage we were linked to another appeal raising similar novel points, the appeal of another Appellant called MN, who is represented by Silvia Nicolaou Garcia of Simpson Millar.
In the case of MN & IXU v SSHD C4/2019/1319 & C4/2019/1069, the Court of Appeal is now looking at important issues including (i) the correct standard of proof to be applied (ii) the nexus between ‘action’ and ‘purpose’ of the trafficking definition, (iii) the approach to expert evidence, and (iv) the approach to credibility, in Conclusive Grounds decision making.
Under the current system the Home Office makes Conclusive Grounds decisions applying a ‘balance of probabilities’ test, which means that decision makers assess whether a person is more likely than not to have been trafficked. Our Counsel team, Raza Husain QC of Matrix Chambers, Shu Shin Luh and Ronan Toal of Garden Court Chambers, are arguing that this test is set unlawfully high and breaches the UK’s duties under Article 4 of the European Convention on Human Rights – the prohibition of slavery and forced labour. Our credibility framework challenge raises the point that the Home Office’s approach is unlawful in failing to properly adjust assessments to be child-specific when determining child claims such as IXU’s. IXU’s nexus ground is a discrete technical argument rejecting the Home Office position that IXU’s account of an attempt to force her into a child marriage does not constitute trafficking under the legal definition. The AIRE Centre (represented by Stephanie Harrison QC and Gemma Loughran of Garden Court Chambers) and Anti-Slavery International (represented by Tom de la Mare QC, Jason Pobjoy and Gayatri Sarathy of Blackstone Chambers) have permission to intervene in relation to the standard of proof and credibility grounds, and are making joint submissions.
The appeal is proceeding remotely due to the Covid-19 lockdown measures in place, with the three Lord and Lady Justices, the advocates, the legal teams, and Appellants all connecting via Skype for Business. The first two days of the hearing have run surprisingly smoothly! The ‘Courtroom’ is open to members of the public and the hearing (continuing today) can be followed at this link. Join Skype Meeting