Home > Cases > High Court: Balance of probabilities is a lawful standard for final trafficking decisions

The UK Government has established a ‘National Referral Mechanism’ (“NRM”) to comply with some of its international obligations under the Council of Europe Convention on Action against Trafficking in Human Beings (“ECAT”). The ECAT has a two-stage process for identifying victims of trafficking, reflected in the NRM. The first stage is to ask whether there are “reasonable grounds” for believing that a person is a victim of trafficking. If that is answered positively, the second stage, after granting the potential victim a recovery and reflection period, is to determine whether the person is, in fact, a victim or not: Art. 10, ECAT.

According to guidance published by the Secretary of State, the standard of proof at the initial “reasonable grounds” stage is low: it will be met if the competent authority “suspects but cannot prove” that a person is a potential victim. The same guidance sets a higher standard of proof at the “conclusive grounds” stage, ECAT itself being silent on the point. At this second stage, the guidance requires the competent authority to be satisfied that a person is a victim on the balance of probabilities.

In R (MN) v Secretary of State for the Home Department [2018] EWHC 3268, the claimant submitted that this use of the “balance of probabilities” standard at the second stage of identifying victims was unlawful. She contended that the only lawful standard at both the first and second stages of decision-making was having a “credible suspicion” that someone was a victim. This, she submitted, would ensure consistency with the positive obligation under Article 4 ECHR to take operational measures to protect a person where there is a “credible suspicion” that he or she has been, or is at immediate risk of being, trafficked: Rantsev v Cyprus (2010) 51 E.H.R.R. 1.

Farbey J rejected the claim, agreeing with the Secretary of State that “[t]he United Kingdom’s operational obligations under articles 2 and 4 ECHR are independent of ECAT” and “are not an automatic yardstick for the interpretation or application of ECAT’s more particular obligations” [37]. The judge continued:

“42. […] In the absence of either an express or implied standard within ECAT, the standard of proof at the conclusive grounds stage is a matter of policy for the Secretary of State’s discretion.

43. The Secretary of State has set the standard as the balance of probabilities. In my view, that is an appropriate standard. It is a standard of proof that is well-recognised in domestic law. It is simple to state. It reflects the CA’s task at the conclusive stage, which is to decide whether or not a person is – as a matter of fact – a victim of trafficking. There would be little or no purpose in having a two-stage process of identification unless the first stage was distinct from the second stage. A summary decision on the basis of reasonable grounds is appropriate as a means of determining who is entitled to the sort of immediate protection which ECAT bestows. A substantive decision, taken after reasonable inquiry, may properly be taken on a higher standard. On conventional principles, no challenge lies to the Secretary of State’s decision to adopt the balance of probabilities save on grounds of irrationality. I do not think that the threshold of irrationality is met.”

Gwion Lewis acted for the Secretary of State for the Home Department.

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