AAA -v- Secretary of State for the Home Department (anonymity order)

Administrative CourtHigh CourtKing's Bench DivisionAnonymity Order

Claim number: AC-2024-LON-002808

In the High Court of Justice
King’s Bench Division
Administrative Court

30 October 2024

Before:

Michael Ford KC, sitting as a Deputy High Court Judge

Between:

The King on the application of
AAA

-v-

Secretary of State for the Home Department

Order

Notification of the Judge’s decision on the application for permission to apply for judicial review (CPR 54.11, 54.12)

Following consideration of the documents lodged by the Claimant, the Acknowledgement of Service filed by the Defendant and the reply of the Claimant to the summary grounds

ORDER by Michael Ford KC, sitting as a Deputy High Court Judge

  1. The application for permission to apply for judicial review is refused.
  2. Pursuant to CPR rule 39.2(4), the identity of the Claimant shall not be directly or indirectly disclosed and the Claimant shall be anonymised and referred to in these proceedings as “AAA”. In any report of these proceedings, there shall be no publication of the name and address of the Claimant, nor of any particulars liable to lead to his identification.
  3. The costs of preparing the Acknowledgement of Service are to be paid by the Claimant to the Defendant, summarily assessed in the sum of £1,162,50.
  4. The Claimant has the benefit of cost protection under section 26 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. The amount of costs that the Claimant shall pay shall be determined on an application by the Defendant under regulation 16 of the Civil Legal Aid (Costs) Regulations 2013. Any objection by the Claimant to the amount of costs claimed shall be dealt with on that occasion

Reasons

  1. The Claimant challenges (i) the Defendant’s decision, set out in a letter dated 20 May 2024, that there were no reasonable grounds to conclude that he was a victim of slavery or human trafficking; and (ii) its refusal to reconsider that decision in light of new evidence, as explained in the Defendant’s response of 18 July 2024 to the PAP letter.
  2. The Claimant is an asylum seeker who fled persecution in Sudan. He also contends that he is a potential victim of human trafficking. Disclosure of his identify may place him or his family at risk of harm. In the circumstances I consider that it is appropriate to grant him an anonymity order, as a departure from the principle of open justice.
  3. Ground 1. Ground (1) contends that the Defendant, in reaching the reasonable grounds determination, failed to take into account all relevant factors that might favour the Claimant’s account and failed to follows its own guidance.
  4. I do not accept that this claim is academic now that that the Claimant has received a positive asylum decision, as the Defendant contends. If he were a victim of modern slavery, he would be entitled to support: see the Claimant’s reply at para. 3.
  5. As for the arguments supporting ground 1, first it is said in paras 78-80 or 5h3 of the Statement of Facts and Grounds (“SFG”) that the Defendant failed to consider generic evidence that migrants living in Libya are vulnerable to exploitation, trafficking and modern slavery. But the Defendant took into account guidance from the USA on the generic position in Libya and noted it confirmed individuals were victims of modern slavery and exploitation there (see p 3). Its decision was principally based on the lack of detail in the Claimant’s own account. I do not consider it is reasonably arguable that the generic evidence about Libya was sufficient in and of itself to require a reasonable grounds determination in favour of the Claimant, nor that the Defendant failed to consider the generic position.
  6. As for the points made at para 81 of the SFG, in his ASF1 application on 20 December 2022 the Claimant did not state that he had been trafficked but, rather, that he had “suffered torture in prison Libya”. He also confirmed in the same document that he had not been trafficked. In those circumstances I do not consider that the Defendant was required to consider this factor as supporting his account of being subject to trafficking while working on an olive farm in Libya. Nothing in the decision of 18 July 2024 suggests it was infected by any view of the DET Officer about the Claimant’s honesty. Rather, the decision was principally based on the lack of detail in his account, coupled with other matters such as the failure to mention exploitation at his screening interview.
  7. The Guidance may caution against relying on late disclosure of exploitation (see e.g. paras 14.71ff). But the Defendant considered there was no added level of vulnerability which mitigated the lack of detail in the Claimant’s account and it was entitled to have regard to evidence which tended to undermine that account, such as his statement at his asylum screening interview that he had not been exploited.
  8. The decision referred to the Claimant’s evidence and it is clear when the decision is read as a whole that the decision-makers viewed that account as indicating exploitation; but they rejected it because of the lack of detail. The Defendant did not find that the absence of medical evidence was the fault of the Claimant or that such evidence was necessary to cross the threshold for showing reasonable grounds. Rather, it decided that there was no sufficient explanation for the lack of detail. That the Claimant’s asylum claim had not been determined does not imply or entail any error in the reasonable grounds decision. The generic evidence in relation to Libya coupled with the Claimant’s own account did not make it arguably irrational to reject his claim: the Defendant was entitled to consider other matters, such as the lack of detail and what the Claimant said at his asylum interview on 19 November 2022, in assessing all the evidence.
  9. Ground 2. This ground is based on the Defendant’s failure to reconsider its decision in light of the report of Dr McQuade, sent with Claimant’s PAP letter of 15 July 2024. Although the Defendant accepted the report contained new evidence, the Defendant declined to consider it because (i) it had been sent outside the one-month period for reconsideration and (ii) no exceptional circumstances had been shown for granting an extension of time: see letter of 18 July 2024. That decision appears to be in accordance with the statutory Guidance: see paras 14.216 14.228. Although in the SFG it is contended that Dr McQuade could not complete his report until disclosure had been provided and that the fact the Claimant was in detention hampered obtaining expert evidence, it seems no application was made for an extension of time, even though consideration was being given to instructing Dr McQuade in May 2024 (see the Claimant’s solicitors’ letter of 15 May 2024). Nor is it contended that there were exceptional circumstances present which justified an extension under para. 14.228.
  10. In the reply the Claimant relies upon Article 4 ECHR as, in effect, requiring a reconsideration whenever there is new relevant evidence, citing DS v Secretary of State for the Home Department [2019] EWHC 3046 (Admin). But I do not read that decision as meaning that reasonable procedural time limits on reconsideration requests are simply to be swept aside and ignored, especially when (as here) they include powers of discretionary extension. In the absence of any sufficient explanation why the Claimant’s solicitors did not ask for an extension of time under para. 14.228 of the Guidance as early as possible – when it seems they were in the process of instructing Dr McQuade in May – and in the absence of any explanation in the letter of 15 July of the exceptional circumstances which justified an extension time, I do not consider it arguable that the Defendant erred in rejecting the reconsideration request because it was not made within the time limits in the Guidance.
  11. For these reasons I do not consider the SFG disclose reasonably arguable grounds of challenge. The Defendant has claimed its costs of £1,162.50 for preparing the Acknowledgement of Service, based on four hours work, which appears to me to be a reasonable and proportionate amount. I summarily assess costs in that amount. The order reflects the fact that the Claimant is legally aided.