United Kingdom: High Court rules that reconsideration policy in cases concerning the identification of victims of human trafficking deemed unlawful

On 15 November 2019, the High Court (the Court) published its ruling on the case of DS, R (On the application of) concerning the judicial review challenge of the government’s policy on the reconsideration of failed claims identifying victims of human trafficking.

The case concerns an Albanian claimant who was recruited for the purposes of prostitution. The claimant became pregnant before escaping from Albania in 2015. After arriving in the UK, the Bristol Red Cross referred her as a potential victim of human trafficking and she received support to make an application for asylum. The Secretary of State was notified that there was a record that the claimant’s passport had been used to travel from Albania to Italy in 2014. The applicant claimed this had been done by someone else without her knowledge. Despite this, the Secretary of State made a negative conclusive grounds decision determining that the claimant was not a victim of human trafficking. A report produced by an independent law enforcement consultant attested that it was not uncommon for passports to be used fraudulently to pass in and out of Albania. After an initial refusal, the Secretary of State later agreed to reconsider the application in light of new evidence, including the report. On 3 September 2019, the Secretary of State issued a revised positive decision. The legality of the reconsideration policy was still disputed.

The claimant argued, inter alia: the identification of victims of human trafficking must be done of the State’s own motion; the State may not refuse to reconsider a decision when new evidence is brought to light; and the requirement that reconsideration requests first go through a third party support provider is an unlawful delegation of duty to identify victims of human trafficking.

The Court noted that the current policy was rigid, demonstrated the institutional disregard of potentially relevant evidence and provided for the unlawful delegation of State duty. It was held that the restrictive nature of the policy impairs the effectiveness of a victim’s remedy of reconsideration by operating arbitrarily, inconsistently and without transparency. As a result, it is possible that evidence may be considered or ignored as a result of the unlawful discretion of the Secretary of State. The Court therefore held that the reconsideration policy was not lawful.

This item was reproduced with the permission of ECRE from the ELENA Weekly Legal Update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is pusexblished but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.