Abstract
On 10 May 2022, the Claimant entered the UK via a small boat from Albania and claimed asylum, which was refused on 6 June 2022. On 13 June 2022, he was referred into the National Referral Mechanism (NRM) on the basis that he was recruited in Albania to work long hours on a construction site where he was not paid for 5 or 6 months. When he challenged that he had not been paid for the work he had done, he was beaten and subsequently asked by his employer to start selling drugs. The Claimant refused to do this, and his employer stated that if he did not, then he would owe £15,000. After receiving numerous death threats from his employer, he left Albania. He received a negative Reasonable Grounds Decision (RGD) on 14 June 2022, which was reconsidered and rejected again on 17 June 2022. The Claimant sought a reconsideration of that decision on 17 August 2022 and received a further negative reasonable grounds decision on 14 September 2022. The Claimant challenged a judicial review of this decision on 14 December 2022, arguing that the decision from the Immigration Enforcement Competent Authority (IECA) which did not accept that the Claimant was recruited for the purposes of exploitation, and therefore the Claimant did not meet the definition of modern slavery.
The Court considered the facts of the case to establish whether the Claimant met the legal definition of trafficking and should therefore be given a positive RGD. The legal definition can be found here: “Trafficking in persons” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. [Article 3(a)]
In applying the third element, the ‘purpose of exploitation’, it was necessary to establish whether exploitation had taken place, namely the forced criminality of selling drugs or whether the Claimant was subjected to forced labour on the basis that the Claimant was not compelled to work, under any form of menace and free to leave the employment at any time.
The discussions for the Court were firstly whether the Defendant unlawfully discounted the attempt to force the Claimant to supply drugs and secondly, whether the Defendant could rationally reach a conclusion that there was no intention to exploit the Claimant.
The claim for judicial review challenged the decision of the SSHD that there were no reasonable grounds to conclude that the Claimant is a victim of modern slavery. The Parties agreed that the sole issue that arises was whether the IECA erred in law in its assessment that the Claimant was not recruited for the purposes of exploitation (at [7]). The application for judicial review is refused by the Court for a number of reasons. The judgment intentionally focused on the narrow issue of ‘purpose of exploitation’. This is the third element within the legal definition of trafficking set out in the UN Trafficking Protocol, alongside the two other elements of the crime, the action element and the means element:
The meaning of ‘purpose of exploitation’ is explained in the Explanatory report of the Council of Europe Convention on Action Against the Trafficking in Human Beings (ECAT). It states that it is not necessary for someone to have been exploited for there to be trafficking in human beings. It is enough that an individual has been subjected to one of the actions referred to and by one of the means specified above in the legal definition “for the purpose of” exploitation (at [87]).
Furthermore, the Modern Slavery Statutory Guidance for England and Wales states that the purpose is key, rather than whether the exploitation has occurred [Section 2.24]. This is because there are situations where exploitation fails to materialise, for example, where police raids take place before rescuing people any exploitation occurs [2.23].
The Court disagreed with the Claimant's argument that the Defendant failed to rationally reach the conclusion that there was no intention to subject the Claimant to forced criminality. The Claimant was originally recruited for the purpose of working on a construction site for 6 months, and at a later future point the demand was made to him that he supplies drugs by his employer [48]. The Court further held that the Claimant was allowed to go home at the end of every day on the site; and the suggestion that the employer had always intended to exploit the Claimant and had been grooming him for purposes of crime for the 6-month period was too speculative (at [49]).
It was clear to the Court that the Claimant voluntarily left the employment, changed his phone number and fled the country without selling any drugs, which his employer wanted him to do after receiving threats [37]. To further support the reasons for the judgment, the Court used the ‘common sense guidance’ set out by the Court of Appeal in the case of MN & IXU v Secretary of State for the Home Department [2020] EWCA Civ 1746 [2021] WLR 1956 to establish the required nexus between the action element and the intended exploitation [342]. In this case, the alleged exploitation took place at a later stage with the question of immediacy addressed here: We certainly think that it is dangerous to substitute a test of “immediacy”: the distance of time between the act and any possible future exploitation will be relevant to an assessment of whether the one is done for the purpose of the other, but it cannot be the touchstone. [342]
The case reaffirmed that there must be a connection between the act of recruitment and the intended exploitation for an individual to be regarded as a victim. As referenced in the case, ‘the correct principles were that any act of exploitation must be closely linked to the other acts which make up the elements of the trafficking definition’ [340]. As a result of the above, the Court concluded that the decision not to recognise the Claimant as a trafficked victim as lawful.
Commentary
The issue of establishing the purpose of exploitation is relevant for victims to satisfy the legal definition of human trafficking so that they can be positively identified by the State. As a general starting point, ECAT affirms that individuals can be victims of trafficking even where exploitation has failed to materialise.
This is a highly significant case relating to the purpose of exploitation. The type of exploitation which is intended by a trafficker may be different from what was envisaged at the start of the original act of recruitment. The exploitation and the length of time between the recruitment and the exploitation taking place are important legal issues.
The Court in the present case identified that the question which must be posed is what the specific purpose of the act is to take place, rather than whether the exploitation had indeed occurred. This shifts the analysis from the victim to the intention of the exploiter from the outset of the recruitment of the individual during the action phase. In some cases, individuals may be recognised as victims if the nature of the exploitation intended at recruitment is the same as intended to take place later. Reassuringly for victims, they do not have to prove that the exploitation has taken place.
However, not all trafficked victims are in this scenario. The type of exploitation which was envisaged by an exploiter during recruitment may indeed change at a later point. Problems arise where the exploitation takes place weeks or months after the initial action element has been satisfied. This circumstance exposes some individuals to the risk of not being regarded as trafficked by the NRM, especially where the exploitation is different and if the exploitation is due to occur at a later point in the future. In these circumstances, the degree of nexus cannot be established and forms a weak connection between the action element and the purpose of exploitation which is required.
This ruling disadvantages individuals who allege that there is a high risk of exploitation taking place but have not yet experienced the exploitation. Their status as victims remains in limbo unless they can prove a sufficient nexus between the recruitment and the proposed exploitation, or the victim has indeed experienced exploitation. The latter illustrates situations where individuals must prove their exploitation has taken place before they can be regarded as a victim by the NRM. In cases where there has been a lapse of time, this has been shown to have an adverse impact on the ability of the individual to prove their victim stats. Furthermore, the nexus between the act of recruitment and then the change of type of exploitation is significant. Where there is a change of exploitation from the initial act of recruitment, the less likelihood there is that the individual will be positively identified.
The threshold needed to satisfy the Court will be to prove that the initial act of recruitment was carried out with the purpose of exploiting them. In this case, the degree of time between the intended forced criminality was deemed to be too long, and the different type of exploitation which was due to be inflicted was different in nature from the exploitation of his working on the construction site for no pay. Consequently, there was a weak link between the events of the non-payment of wages which took place, and the subsequent threats to life if the Claimant did not agree to sell drugs for his employer.
This approach is detrimental to trafficked victims in a similar situation who wish to be positively identified by the State. It goes against the Explanatory report of ECAT stating that exploitation does need to have taken place. Nevertheless, the Court interprets the facts to include a higher bar for victims to prove that there is a sufficient nexus (in terms of type of exploitation and when the exploitation was due to occur) between the original reasons for recruitment and the exploitation to have taken place.
A potential way forward would be to establish a reasonable foreseeability test, asking the question of whether there was a high risk of the exploitation taking place. The Court refused to examine the issue of immediacy. Therefore, this area has currently been unresolved. Clarifying what degree of time is reasonable between recruitment and exploitation to prove the victim status of individuals proceeding through the NRM would have been too onerous. As in most cases, it would be determinable depending upon the facts of each case. The longer the time between recruitment and the exploitation taking place, the less likely that there will be a strong nexus connecting the two together.
Nevertheless, victims of trafficking in similar situations should pursue their opportunity to be positively identified through the NRM procedure. The most difficult part of proving their status as a victim of crime as well as a trafficked person will be establishing that there is a strong link between the action and the intention of the trafficker, especially where there has been a significant amount of time which has passed between the start of recruitment to the proposed exploitation taking place and where the exploitation is different in nature to the original intent from the outset of recruitment.
