Chinese man who claimed he was a modern slave fails in judicial review of decision to reject human trafficking victim claim



Lord Armstrong
Lord Armstrong

A Chinese national whose claim that he was a victim of human trafficking was rejected has had a legal challenge against that decision dismissed.

Dunshou He claimed that he became a victim of modern slavery after fleeing his home country and arriving in the UK via Ireland, but the Secretary of State for the Home Department concluded that “inconsistencies” between his differing accounts “undermined” his credibility to the extent that his claim to have been trafficked could not be accepted.

The petitioner sought judicial review of that decision, but a judge in the Court of Session was not persuaded that the decision should be reduced.

Lord Armstrong heard that the petitioner’s claim was that he had fled China in order to escape the authorities whom he feared would persecute him because they suspected him of having breached the state’s one child policy.  

‘No reasonable grounds’

He had approached a person named “Aming” who undertook to assist his escape to Europe on the basis that, once there, he would work for Aming in order to pay off his travel costs of about £36,000, but once in Ireland he claimed to have been under the control and direction of Aming and forced to work in a number of Chinese restaurants. 

The court was told that, when first interviewed by an immigration officer, on 15 November 2017, the petitioner advised that he had a wife and a 20-year-old son in China, and that his parents also lived there. 

Subsequently, on 18 January 2018, he advised British Transport Police that his wife had left him and no longer lived in China and that he had three children remaining who were looked after by his father, as his mother had died while he had been in the UK.

He claimed to be completely under the control of Aming, but also stated that he had attended a Chinese Embassy and had obtained a passport, contrary to what might be expected of a person wanted by the Chinese Government.

On 15 November 2017 he had indicated that he had travelled to the UK by a flight from China to Paris, and then, by another, from Paris to London, but on 18 January 2018, he advised, rather, that he had travelled from China to Hong Kong by car, had climbed mountains and, from an airport there, had flown to France, and then onward to Ireland in a container on a boat. 

The respondent concluded that there were “no reasonable grounds” to suspect that the petitioner was a victim of human trafficking, having assessed his credibility of by reference to the inconsistencies apparent in differing accounts given by him.

‘Fundamental misunderstanding’

However, on behalf of the petitioner it was submitted that the respondent had failed to apply the correct standard of proof.  

Reference was made to the Home Office document, ‘Victims of modern slavery - competent authority’ guidance as to the test to be applied, in particular the formulation “I suspect, but cannot prove”, which was said to be a “much less stringent test than proof beyond reasonable doubt or proof on the balance of probabilities”.  

By assessing the petitioner’s credibility as he had, the respondent had applied the relevant test “too vigorously” in respect of the four remaining grounds of challenge. 

It was also argued that the decision revealed a “fundamental misunderstanding” of the facts relating to how, and when, the petitioner travelled from China to Ireland and then the UK, which “pervaded the entire decision” and “undermined the whole decision”.

Further, it was submitted that in assessing the petitioner’s credibility, the respondent had “fallen into error” by attaching “undue weight” to inconsistencies in the petitioner’s account and failed to take into account “mitigating reasons” which might explain inconsistencies in his account, such as fear or anxiety. 

It was also argued that the implicit assumption that the petitioner could not be a victim of human trafficking because he had “some control over his situation”, for example, by having attended the Chinese embassy, was “not justified”.

‘Rational decision’

Refusing the petition, the judge ruled that the Home Secretary had provided “adequate, cogent, and rational reasons” for the decision.

In a written opinion, Lord Armstrong said: “For the reasons advanced on behalf of the respondent, I am not persuaded that the decision under challenge should be reduced on the submitted grounds of irrationality or inconsistency. 

“I find, rather, that the respondent was entitled to assess the petitioner’s credibility as he did, when considering whether, in the petitioner’s case, applying the correct test to the relevant and accepted definition, there was scope for suspicion that he had been a victim of human trafficking. 

“Given the nature of the relevant test, there was no requirement on the respondent to ascertain the true factual position. I am satisfied that there was adherence to the relevant Home Office guidance.

“The inconsistencies concerned, which bore, for example, on the detail of (i) the petitioner’s name, (ii) the composition of his family, (iii) the route of his travel from China, (iv) the timing of his arrival in the UK, (v) his medication, and (vi) the circumstances of his claimed control by others, were, viewed in their cumulative effect, significant matters which the respondent was entitled to take into account. 

“Assessing the whole matter in the round, I find that, the decision, which is comprehensive in its terms, extending to ten pages, provides adequate, cogent, and rational reasons. On the basis of the information available to him, the conclusion reached by the respondent was one which was legitimately open to him, and one which he was entitled to reach.”

© Scottish Legal News Ltd 2019



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