Human trafficking – the correct approach to forced domestic labour

Lucy Mair, a barrister at Garden Court North Chambers, examines, in an interview with LexisNexis, the Administrative Court’s decision in R (on the application of NM) v Secretary of State for the Home Department [2017] EWHC 2798 (Admin) to quash the defendant’s conclusion that the claimant was not a victim of human trafficking. The court found for the claimant on grounds regarding her credibility and the correct definition of forced labour in a domestic setting for the purposes of human trafficking. A copy of Lucy’s interview, reproduced with permission, appears below.

What are the practical implications of the decision?

The case provides useful guidance to practitioners representing victims of trafficking, both before a decision is made by a competent authority, within the meaning of the Council of Europe Convention on Action against Trafficking in Human Beings, as well as in challenging unlawful decisions made by the competent authority. Trafficking is defined under Article 4(a) of the Convention on Action against Trafficking in Human Beings as involving exploitation, which includes slavery, servitude and forced labour. Under Article 2 of the International Labour Organisation Forced Labour Convention, forced labour is defined as work exacted under the menace of a penalty and not done voluntarily.

With regard to credibility, the defendant Secretary of State, acting in her capacity as the competent authority, has developed detailed guidance for her decision makers on how to assess a potential victim of trafficking’s account of exploitation, but in reality, decisions often disclose prima facie breaches of that guidance. It is essential that practitioners familiarise themselves with the guidance as they may well be able to use it to challenge negative decisions where the refusal has been made on the basis of a lack of credibility. For example, although the guidance stipulates that ‘competent authorities are entitled to consider credibility as part of their decision-making process’, the defendant in this case had considered credibility as determinative in her decision. Furthermore, the guidance requires the competent authority to consider the external credibility of the material facts, but the defendant had failed to take into account objective country evidence and the claimant’s dealings with external agencies.

With regard to the definition of forced labour in domestic service settings, the defendant’s own guidance conflates the various levels in the hierarchy of exploitation, ie slavery, servitude and forced or compulsory labour. As a result, the defendant had considered whether the claimant met the test of being in domestic servitude, which contained elements of all three levels of the hierarchy and thus set the bar too high. She had not considered the lower test of being a victim of compulsory or forced labour. Practitioners must be alert to the problems of the defendant’s definition of domestic servitude as well as the way in which she applies it.

Additionally, the defendant appears to assume that some degree of force is required for applicants to make out their claim of being victims of trafficking for the purposes of domestic servitude. Practitioners would do well to make appropriate legal submissions on their clients’ behalves before a decision is made by the competent authority, setting out their understanding of the correct definition and how their clients’ circumstances meet the definition – either in terms of forced labour, servitude or slavery in a domestic setting.

The claimant relied upon a number of helpful judgments from the Strasbourg and domestic courts as well as analysis from experts and practitioners on what type of practices may amount to forced or compulsory labour (in a domestic or other settings) as opposed to merely poor labour practices. It appears that the defendant is increasingly rejecting trafficking claims, even where the credibility of that claim is accepted, on the basis that the treatment is simply not bad enough to qualify as human trafficking and practitioners should familiarise themselves with the relevant legal arguments both before a decision is made and after a negative decision is made in terms of a challenge by way of judicial review.

What was the background?

The claimant is a national of Malawi from an impoverished background who had been forced to financially support herself and her family through paid sex work in her home country. Thus, when she was offered an opportunity to make a living in the UK by providing domestic and childcare services she readily accepted. While the claimant had been told that her pay for the first three months would be used to recoup the cost of her travel to the UK, she was not paid even after the three months had elapsed. She was made to work very long hours in a private household and rarely left the house except to take the child to a small playpark across the street. Her employer’s boyfriend was also making unwanted sexual advances towards her, which was her impetus for her eventual escape, after six months in the household.

The claimant was referred by the police into the National Referral Mechanism in order for the competent authority to investigate whether she was a victim of human trafficking, as the police had noted indicators of trafficking.

The defendant applied the two-stage process under Article 10 of the Council of Europe Convention on Action against Trafficking in Human Beings, and although she initially agreed there were reasonable grounds to find the claimant was a potential victim of human trafficking, at the conclusive grounds stage she rejected her claim, finding that the claimant was not a reliable witness and no weight could be placed upon her evidence. The primary reason given for this finding was that the claimant had failed to provide what the defendant considered to be ‘key details’ – including the surname of her trafficker, the street address where she lived and worked, or any other identifying features of the neighbourhood.

Additionally, the defendant did not accept that the claimant’s circumstances amounted to trafficking in the form of domestic servitude, as opposed to poor labour practices.

What did the court decide?

On the first ground regarding credibility, HHJ Saffman said that the claimant’s failure to produce any evidence to corroborate her account had led the defendant not only to question it but completely reject it. The defendant had gone too far in concluding that the claimant’s evidence lacked any credibility and was to be given no weight at all. The defendant should have set out in detail and with a high standard of reasoning how and why she had concluded that the claimant had no credibility – simply pointing out that there had been a failure to provide the details necessary to identify the claimant’s employer or where she lived was not enough.

HHJ Saffman further found that the defendant’s claim that there had been ‘internal inconsistencies’ in the claimant’s account was erroneous because there were no obvious inconsistencies in it, and he agreed that there had been breaches of the defendant’s guidance with regard to credibility in the decision making.

In regard to the second ground regarding the irrationality or unlawfulness of the defendant’s conclusion that even on the claimant’s evidence she had not been a victim of human trafficking, HHJ Saffman also found in the claimant’s favour.

The claimant highlighted that there had been no proper consideration as to whether her circumstances amounted to forced labour in that the work had been extracted under the menace of a penalty and the services had not been offered voluntarily. The defendant’s decision had stated that, other than not being paid, the claimant had not been mistreated by her employer. The claimant argued that mistreatment was not a necessary precondition for the establishment of menace of a penalty and therefore the defendant had erred in law in concluding that absence of mistreatment meant she was not a victim of trafficking. Furthermore, the claimant argued that any conclusion reached by the defendant that she had not established that her labour was involuntary was irrational. These submissions were based upon case law including Van der Mussele v Belgium (App no 8919/80) [1983] ECHR 8919/80 and MS (Trafficking – Tribunal’s Powers – Art 4 ECHR) [2016] UKUT 226 (IAC).

HHJ Saffman found that the defendant’s decision did not specifically address issues of menace of penalty or the issue of whether the claimant’s services were offered voluntarily. While the decision had set out the definitions of human trafficking and compulsory labour, the defendant had considered the exploitation component in the definition of trafficking in the context of whether the claimant had been subjected to servitude and sexual exploitation, and had not properly considered forced labour. The claimant was entitled to expect the decision to specifically address issues relating to exploitation by way of forced labour rather than, or at least in addition to, domestic servitude and sexual exploitation. The decision’s total absence of any reference to menace of a penalty or services being offered on a voluntary basis suggested that scant, if any, consideration had been given to whether the claimant met the criteria for trafficking on the basis that she was exploited for the purposes of forced labour. Furthermore, the test for forced labour did not include mistreatment.

The judge therefore concluded that the defendant’s decision was to be quashed and ordered her to reconsider it.

Lucy Mair appeared for the claimant in this case. She was instructed by Nadeem Ahmed of Howells LLP.

Interviewed by Robert Matthews.

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

Lucy Mair is a barrister at Garden Court North Chambers.