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

Administrative CourtHigh CourtKing's Bench DivisionAnonymity Order

Claim number: CO/2524/2023

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

11 December 2023

Before:

Dexter Dias KC, sitting as a Deputy High Court Judge

Between:

The King on the application of
KCL

-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 [and the Acknowledgement(s) of Service (AoS) [and Summary Grounds of Defence (SGD)] filed by the Defendant.

ORDER by
Dexter Dias KC, sitting as a Deputy High Court Judge

  1. Anonymity of claimant granted. He shall be known hereafter as KCL.
  2. Extension of time for AoS granted.
  3. The application for permission to apply for judicial review is granted.

Case Management Directions

  1. The Defendant and any other person served with the Claim Form who wishes to contest the claim or support it on additional grounds shall, within [35] days of the date of service of this Order, file and serve (a) Detailed Grounds for contesting the claim or supporting it on additional grounds, and (b) any written evidence that is to be relied on. For the avoidance of doubt, a party who has filed and served Summary Grounds pursuant to CPR PD 8C 5.5 may comply with (a) above by filing and serving a document which states that those Summary Grounds shall stand as the Detailed Grounds required by CPR PD 8C 12.1.
  2. Any application by the Claimant to serve evidence in reply shall be filed and served within [21] days of the date on which the Defendant serves evidence pursuant to 1(b) above.
  3. The parties shall agree the contents of the hearing bundle and the Claimant must file it with the Court not less than [21] days before the date of the hearing of the judicial review. An electronic version of the bundle shall be prepared and lodged by the Claimant in accordance with the Guidance on the Administrative Court website. The Claimant shall, if requested by the Court lodge hard-copy versions of the hearing bundle.
  4. The Claimant must file and serve a Skeleton Argument not less than [14] days before the date of the hearing of the judicial review.
  5. The Defendant and any Interested Party must file and serve a Skeleton Argument not less than [7] days before the date of the hearing of the judicial review.
  6. The parties shall agree the contents of a bundle of authorities to be referred to at the hearing. An electronic version of the bundle shall be prepared by the Claimant in accordance with the Guidance on the Administrative Court website. The Claimant shall if requested by the Court, prepare a hard-copy version of the authorities bundle. The electronic and hard copy versions of the bundle must be lodged by the Claimant with the Court not less than [5] days before the date of the hearing of the judicial review.
  7. If permission has been granted on some grounds but refused on others, the Claimant may request that the decision to refuse permission be reconsidered at a hearing by filing and serving a completed Form 86B within 7 days after the date this order is served on the Claimant. The reconsideration hearing will be fixed in due course.

Reasons

  1. By a claim issued on 30 June 2023, the claimant seeks permission to judicially review the defendant’s negative reasonable grounds decision of 3 April 2023. The claimant further challenges the defendant’s refusal to reconsider (see SFG §II).
  2. The court must perform its protective function given the claims of vulnerability and exploitation in this case. Thus the claimant must be anonymised (CPR 39.2).
  3. The claimant is a Vietnamese national. Having travelled to the United Kingdom, he began labouring in an enterprise to produce cannabis. At Kingston Crown Court, he received a prison sentence of 9 months for producing cannabis resin and was served with deportation papers. On 6 December 2022, he claimed asylum here. He claims to be in fear of loan sharks in Vietnam, to whom he owes approximately £80,000. The essence of his claim in judicial review involves the proper interpretation of modern slavery.
  4. I find that the arguability test is met.
  5. It is arguable that the defendant was too narrow in her analysis of the salient factors in this case and placed undue emphasis in her consideration of forced labour on the question of physical compulsion, whereas the modern understanding of coercion now requires a wider, more nuanced and sensitive analysis, just as the developing approach to coercive control in other spheres demands. There were also several material indicators of the level of the claimant’s vulnerability that arguably were not sufficiently assessed in light of a proper approach to the wider and situational nature of compulsion. It is arguable that the connection between vulnerability and exploitation was not adequately assessed. The question of “consent” as it feeds into forced labour was also arguably flawed, and it is arguable that insufficient attention was paid to the nature of voluntariness (or its lack) and the extent that consent was meaningfully informed.
  6. I emphasise that I do not find that the defendant’s decision was flawed in public law terms. I find that it is arguable that it was. I am satisfied that the “low” threshold of arguability has been met and that claimant has arguable grounds with a realistic prospect of success (Sharma v Brown- Antoine [2007] 1 WLR 780 at [14(4)]; CPR 54.4.2 and Judicial Review Guide 2023 at §9.1.3). As explained in Maharaj v Petroleum Company of Trinidad and Tobago [2019] UKPC 21, the threshold for the grant of leave to apply for judicial review is “low” (at [3], per Lord Sales).
  7. The several arguments advanced by the defendant in her AoS/SGD can be advanced at the substantive hearing. Taken together with the careful submissions of the claimant, they unmistakably reinforce the point that there are several issues of substance that merit being tried that remain arguable, and that is the governing test. This court takes modern slavery, trafficking in human beings and the exploitation of the vulnerable very seriously. This claim must be tried.