CGW, R (on the application of) v The Secretary of State for the Home Department

This case is about the standard of inquiry, consideration and reasoning to be expected of the Defendant when she takes a negative ‘Conclusive Grounds’ decision under the Modern Slavery Act 2015 (“MSA 2015”) rejecting an individual’s claim to be a victim of modern slavery.

In the early hours of the morning on 6 July 2023, a lady contacted the police to report something odd that had happened to her. She had been approached by a gentleman whom she did not know and who apparently did not speak English. He had handed her a letter from TV Licensing bearing the address of a particular property, and used the Google Translate mobile phone app to tell her that (i) the property was being used for growing cannabis, and (ii) someone was “stuck” there, unable to leave. The lady gave the Police the property address shown on the letter.

Police officers were promptly dispatched to the property. This was at around 3 o’clock in the morning, so it would still have been dark. Whilst they were outside the property, the police officers could see someone in the upper window who was gesticulating to show he did not have a key and could not get out. The officers forced entry to the property and found within it many cannabis plants and the Claimant. The Claimant is a man whose mother tongue is Vietnamese and who speaks very little English. He was arrested on suspicion of being involved in growing cannabis and taken to a police station. Later the same day, during daylight hours, police officers visited the property again. They counted around 200 cannabis plants and documented the presence of high intensity lighting and other equipment for growing cannabis. The estimated value of the cannabis was £225,000.

On the same day, police officers interviewed the Claimant. He said he had been held in the property against his will and forced to carry out, unpaid, the work of tending the cannabis plants. The property was, he said, the latest of a series of cannabis farms to which he had been taken and was then unable to leave.

His account of the events that had led to him being forced to work in cannabis farms began in 2018, when he left Vietnam and travelled, via Thailand and Malaysia, to Turkey. He had subsequently travelled to Greece, then Italy, before reaching Germany, where he had, for around 2 years, worked without pay, receiving only accommodation and food. He had then travelled to France, from which he then made his journey to the United Kingdom on a small boat in May 2021. Upon arriving in the United Kingdom, he had claimed asylum and was accommodated in a hotel by the Home Office (presumably under s.95 of the Immigration and Asylum Act 1999).

Whilst he was living in that hotel accommodation, he was approached by people who said they could offer him work. He expressed interest in this, and he was then picked up in a car by some men and driven away to a house where he was given food and some clothes. He was then transported to a house that was being used for growing cannabis. From then on, he was held against his will and put to work tending cannabis plants. He said he had made attempts to escape but without success. He also said he had been subjected to violence by the people who were controlling him. Such violence included beatings, as well as an occasion when glass was used to cut him.

When the police officers found him at the property, he had in his possession a mobile device that he said had been given to him by the people controlling him. The device was examined by the police and found to contain evidence of his having previously tried to contact a police force via a live chat service.

The police decided on the same day that the Claimant should be treated as a victim of crime, no further action should be taken against him, and he should be referred to the modern slavery National Referral Mechanism (“NRM”). He was subsequently transferred to the care of the Salvation Army, which is one of the agencies that provides care and support for victims of modern slavery.

The NRM involves two decision-making stages by which the Defendant decides whether an individual is a victim of modern slavery: a ‘Reasonable Grounds’ stage and a ‘Conclusive Grounds’ stage. On 24 August 2023, a section within the Home Office called the Immigration Enforcement Competent Authority (“IECA”) made a positive Reasonable Grounds decision relating to the Claimant, finding that there were reasonable grounds for believing that he was a victim of modern slavery (the “RG Decision”).

The RG Decision was recorded in a ‘decision minute’ (the “RG Decision Minute”): a Home Office internal document that was marked “Not for external disclosure unless authorised”. The RG Decision Minute was not provided to the Claimant except as part of disclosure in the present judicial review proceedings pursuant to the Defendant’s duty of candour.

The RG Decision Minute contained the following text, which appears to have been intended as a prompt to the Home Office officials who would be dealing with the case at the next stage of the NRM process:

On 15 November 2024, the IECA sent an email to the solicitors who were at that time understood to be acting for the Claimant. The email stated that the IECA “require[d] further information to help reach a Conclusive Grounds … decision on [the Claimant]’s case” and asked that the Claimant provide, inter alia, a completed Personal Circumstances Questionnaire and, “if [the solicitors] deem[ed] it appropriate to do so”, a witness statement. The email stated that the deadline for providing the requested material was 29 November 2024. A reminder email was sent to the solicitors on 22 November 2024.

Attached to the 15 November 2024 email was a document headed “Witness Statement Guidance”. That document stated as follows:

On 29 November 2024, the IECA was provided with a completed Personal Circumstances Questionnaire and a witness statement from the Claimant. Both of those documents were written in English, having apparently been prepared by a specialist support worker who was assisting the Claimant. A further witness statement from the Claimant, again in English, was provided on 6 December 2024. The two witness statements were both short ones. Read together, they set out in succinct terms his account of the history of how he had come to arrive in the United Kingdom, and of his having subsequently been held against his will and made to work on cannabis farms until he was found by the police officers in July 2023.

On 4 February 2025, the IECA, on behalf of the Defendant, issued to the Claimant a negative Conclusive Grounds decision, finding that there were “not considered to be Conclusive Grounds to believe that [he was] subjected to modern slavery” (the “CG Decision”). The Claimant’s judicial review claim challenges the lawfulness of the CG Decision. His grounds of challenge are as follows:

In my view, Grounds 1, 2 and 3 all go to essentially the same question: Do the reasons given for the CG Decision show that it was taken in accordance with the Defendant’s public law duty to carry out her decision-making rationally, both in terms of the procedure she followed (i.e. making such inquiry as rationality required and properly applying her own guidance) and the substance (i.e. the reasons in the decision must ‘add up’ so as to be capable of rationally justifying the conclusion reached)? It is therefore convenient to consider Grounds 1, 2 and 3 together.

S.49(1)(d) of the MSA 2015 (as amended by the Nationality and Borders Act 2022) requires the Defendant issue guidance about “arrangements for determining whether a person is a victim of slavery or human trafficking”. Pursuant to s.49(1A), the guidance must provide that such a determination “is to be made on the balance of probabilities”.

At the time material to the present case, the Defendant was complying with that duty by publishing the document “Modern Slavery: statutory guidance for England and Wales (under s.49 of the Modern Slavery Act 2015) and non-statutory guidance for Scotland and Northern Ireland”, version 3.12, dated 16 January 2025 (the “Guidance”). The Guidance set out that:

Where a public authority has adopted a policy setting out how it will take a certain type or category of decisions in the exercise of its statutory powers, it will generally be required to apply that policy when taking individual decisions, departing from it only for good reason: Mandalia v Secretary of State for the Home Department [2015] UKSC 59, [2015] 1 W.L.R. 4546, at [29]-[31], per Lord Wilson (with whom the other Justices agreed). In my view, this principle applies with particular force in a context, such as the present, where the policy is set out in guidance that the decision-maker was required by statute to issue for setting out the arrangements for the taking of such decisions.

Given the potential significance and consequences of a positive or negative Conclusive Grounds decision for the individual, a negative decision must be supported by reasons that engage fully with the case advanced and be based on a careful and conscientious analysis of the relevant factors and evidence: see R (SM) v Secretary of State for the Home Department [2024] EWHC 1683 (Admin) at [66]-[67]; and R (MN) v Secretary of State for the Home Department [2020] EWCA Civ 1746, [2021] 1 W.L.R 1956 (“MN”) at [242]-[243].A court reviewing the lawfulness of a negative Conclusive Grounds decision will examine the reasons given for the decision, so as to assess whether they show that the decision satisfies that standard.

In argument before me, the Claimant’s Counsel, Ms Wilsdon, placed considerable emphasis on the level of scrutiny to be applied by the court being a heightened, or more rigorous, level of scrutiny than standard Wednesbury rationality review. She relied particularly on Fordham J’s judgment in R (Alnoor) vSecretary of State for the Home Department [2025] EWHC 922 (Admin), [2025] 4 W.L.R. 57, another challenge to a negative Conclusive Grounds decision. At [27]-[28], Fordham J noted that, pursuant to the Court of Appeal’s decision in MN, such a decision was to be subjected to “anxious scrutiny” by the court, and he provided a description of what this form of “adjusted reasonableness review” involves. (I note, in passing, that another helpful discussion of what “anxious scrutiny” means in practice was provided by Chamberlain J in R (KP) v Secretary of State for Foreign, Commonwealth and Development Affairs [2025] EWHC 370 (Admin), at [76]-[77].)

As part of that description, Fordham J, again citing MN, stated that a “practical consequence of this closer scrutiny” was a “need for decisions to show by their reasoning that every factor which tells in favour of the applicant has been properly taken into account”. As Fordham J noted, those words were derived from the asylum case R (YH (Iraq)) v Secretary of State for the Home Department [2010] EWCA Civ 116, [2010] 4 All ER 448, per Carnwath LJ at [24]. Mr Yetman, who appeared before me on behalf of the Defendant, submitted that the phrase “every factor which tells in favour of the applicant” should be understood consistently with the way it was understood by Cranston J in R (BG) v Secretary of State for the Home Department [2016] EWHC 786 (Admin) at [58]:

In my view, neither Carnwath LJ nor Fordham J were suggesting that a decision subject to “anxious scrutiny” will be condemned as inadequately reasoned merely because the decision-maker’s reasons have not mentioned some point, however minor or trivial, which could be seen as tending to support the applicant’s case. “Anxious scrutiny” by the court is the logical corollary of a decision being one that was of such practical importance or significance for the individual that a rational and fair-minded decision-maker would have undertaken the decision-making process with particular care and diligence, being anxious not to refuse the individual’s application unless that outcome was the correct one. Such a decision-maker would not necessarily recite absolutely every point that could be made in the individual’s favour. But the rational decision-maker would be anxious to look for any factor that could potentially be significant in terms of materially contributing, alongside other factors, to tipping the scales in favour of granting the application. In other words, the decision-maker’s reasons must show that she was anxious not to miss anything that could potentially make a difference in the applicant’s favour.

In my judgment, the reasons given in the CG Decision are plainly deficient. The reasons address each of the three components of “human trafficking” of an adult (see paragraph 18(1) above) in essentially the same way.

The preceding paragraph suffices, in my judgment, to show that the reasons in the CG Decision simply do not provide rational justification for the conclusions reached. That is my finding despite Mr Yetman’s valiant efforts to defend the CG Decision’s reasoning.

The best of his arguments was, in my view, his reliance on the paragraphs of the reasons that preceded the sections considering the three components of “human trafficking”. Those paragraphs stated:

In my view, what those paragraphs are saying is essentially that the information provided by the Claimant had not provided a “level of detail” sufficient “to meet the standard of proof”. The closest the paragraphs come to explaining precisely why the “level of detail” was found to be “insufficient” was the generalised statement that it was “reasonable to assume that a victim giving an account of their modern slavery experience will be more expressive and more likely to include sensory details (for example what they saw, heard, felt or thought about an event) than someone who has not had this experience.” Those paragraphs are, in my judgment, of no assistance in supporting the lawfulness of the CG Decision, for the following reasons:

Mr Yetman also sought to defend the CG Decision on the basis that the various references within the reasons to there being “insufficient information available to make the assessment” in respect of each component of human trafficking had to be read with an earlier section of the CG Decision document in which the factual accounts given by the Claimant to the police and other agencies had been summarised. Mr Yetman submitted that the text within that earlier section showed that the Claimant had given different – and apparently inconsistent – factual accounts at different times. For example, when interviewed by the police, he had said that the person who had approached him whilst he was staying in the asylum hotel was a male, but in his witness statements he had referred to being approached by a Vietnamese lady or by “some people”. In my judgment, this argument does not improve the Defendant’s position in these proceedings. That is so for two reasons:

The Defendant also relied on a witness statement she filed in these proceedings: a short witness statement of Joel McGivena, a Deputy Chief Caseworker in the IECA. That witness statement includes the following text:

In my judgment, Mr McGivena’s witness statement does nothing to support the Defendant’s case. In that regard:

For the reasons set out above, the Claimant’s Grounds 1, 2 and 3 all succeed. The reasons set out in the Decision do not enable the Claimant to know why he was not found to be a victim of human trafficking. Further, the CG Decision was irrational, given the strong circumstantial evidence in favour of the application, which was effectively ignored or irrationally accorded little or no weight. The Defendant also failed to make inquiries that the Guidance, as well as the Tameside duty (Secretary of State for Education and Science v Tameside MBC [1977] AC 1014), required her to make.

For completeness, I note that I found no merit in the Claimant’s point that the reasons in the CG Decision erroneously referred to the Claimant working “on a cannabis farm” (singular) for 2 years, whereas the Claimant’s account was that he had been moved between a number of different farms. It is clear from reading the relevant text in context that the decision-maker understood that the Claimant had worked on more than one farm and there was no confusion on that point.

I next address Ground 5, given that it is linked with Grounds 1 to 3. The Claimant’s case under Ground 5 is that, if any of Grounds 1 to 3 succeed, then he is a victim of trafficking whom the Defendant has failed to protect, and it follows that the Defendant is in breach of her duties of investigation and/or protection under: (i) Article 4 of the Convention Rights in the HRA 1998; and (ii) the ECAT.

The Defendant’s response to Ground 5 is that it does not arise, as she denies Grounds 1 to 3. That response does not assist the Defendant now that I have found for the Claimant on Grounds 1 to 3.

Article 4 of the Convention Rights protects the right not to be held in slavery or servitude, or to be required to perform forced or compulsory labour. As well as prohibiting States from holding people in slavery, Article 4 gives rise to positive duties for the State which include duties to investigate situations of suspected trafficking and to protect individual victims of trafficking: R (TDT) (Vietnam) v Secretary of State for the Home Department [2018] EWCA Civ 1935, [2018] 1 WLR 4922, [16]-[18], per Underhill LJ.

The Claimant in the present case was rescued from a cannabis farm by the police, given immediate assistance in the form of accommodation and other support, and received the positive RG Decision entitling him to further support. The police are likely to have sought to use the intelligence and evidence gathered from the cannabis farm to seek to track down the people behind that illegal enterprise. So this is not a case in which the State has failed either to investigate a situation of suspected trafficking or to provide protection to an individual victim.

In all the circumstances, I am not persuaded that the material that the Claimant has placed before the Court is sufficient to justify a finding that his Article 4 rights have been breached or that the Defendant has failed to comply with her duty under s.6 HRA 1998 to act compatibly with the Convention Rights. Although I have found the negative CG Decision to have been unlawful because the reasons given for it failed to meet applicable public law standards, this does not suffice, without more, to establish a breach of Article 4. There is no evidence before the Court establishing that the Claimant has, in consequence of the CG Decision, been left without material protection that he would have received had a lawful Conclusive Grounds decision been taken. Rather, the way that the Claimant’s case on breach of Article 4 has been put has been essentially limited to relying on the same matters as he advances under Grounds 1 to 3, and to assert that, for the same reasons, there has been a breach of Article 4. In my judgment, this way of alleging a breach of Article 4 is not legally sound. In order to establish a breach of an individual’s Convention Rights, it is necessary to focus on the treatment (such as a failure to provide protection) of that individual. It does not suffice that a public law decision as to what had happened to him, or his entitlement to a particular status, was flawed or has failed to meet the standards of decision-making arising from English public law principles and/or the defendant public authority’s published guidance.

Further, the courts should not, in my view, encourage the proliferation of grounds of challenge alleging breaches of Convention Rights in circumstances where those grounds add nothing of substance to the other public law grounds advanced for challenging a decision. In the present case, my conclusion under Grounds 1 to 3 that the CG Decision was unlawful would anyway suffice to afford the Claimant an effective remedy in respect of any arguable breach of Article 4 constituted by the Defendant’s failure to take a properly reasoned and rational Conclusive Grounds decision after making reasonable inquiries. It is not necessary or proportionate for the court to be asked to grant further relief, such as a declaration of a breach of Convention Rights, in respect of those same matters. I note that the relief sought in the Claimant’s Statement of Facts and Grounds does not include any claim for damages for breach of Convention Rights. Nor has he filed evidence to show he has suffered any material harm or loss such as might make it appropriate to award him any damages in the circumstances of this case.

I reach a similar conclusion in relation to the complaint that the CG Decision constitutes, or suffices to establish, a breach of the ECAT. Although the United Kingdom has signed and ratified the ECAT, it is an unincorporated treaty, and so the Claimant cannot rely directly on the ECAT as a source of rights in this Court. The basis on which he seeks to rely on the ECAT indirectly for the purposes of Ground 5 is that the Defendant’s stated policy position is that (subject to certain limited caveats) she will comply with ECAT, and so public law principles require her to do so. I note that the Defendant has developed and published the Guidance as a means of ensuring that the United Kingdom fulfils its international law obligations under the ECAT and that the Defendant herself acts consistently with those obligations. In the present case, the Claimant’s complaints about the inadequacies of the CG Decision all relate to failures by the Defendant to comply with the Guidance. It is not being said that the Guidance is itself, in some relevant respect, unlawful by reason of its failing properly to reflect the Defendant’s policy of adhering to the ECAT. In these circumstances, the Claimant’s reliance on an alleged breach of the ECAT as a distinct ground of challenge from Grounds 1 to 3 constitutes unnecessary duplication.

For the reasons set out above, Ground 5 is dismissed.

By Ground 4, the Claimant contends that it was unlawful that the CG Decision was taken by officials in the IECA rather than the SCA. The basis for this ground is paragraphs 4.13-4.15 of the Guidance. In those paragraphs, the Defendant explains that the IECA and the SCA are both tasked with recognising modern slavery victims following referrals under the NRM, but that the IECA is “responsible for a specific cohort of adult cases”. That cohort of cases consists of, inter alia, cases of individuals who are foreign national offenders or who are in immigration detention. “The SCA is the competent authority for all other cases referred to the NRM …. Where there are Home Office operational priorities relating to a cohort of cases, consideration will be given to operational handling being specific to (the) one competent authority those cases pertain to.”

On the face of the Guidance, it might reasonably have been expected that the Claimant’s case would be assigned to the SCA, not the IECA. His case did not fall within the “cohort of adult cases” for which the Guidance states that the IECA is responsible. He was not being prosecuted, and had not been convicted, of any criminal offence, and he was not in immigration detention. The Claimant contends that, in these circumstances, the assignment of his case to the IECA was contrary to the Guidance and thus unlawful. In support of that contention, the Claimant relies on R (TM (Kenya)) v Secretary of State for the Home Department [2019] EWCA Civ 784, [2019] 4 W.L.R. 109 (“TM (Kenya)”), [50], [57], as establishing that a public authority’s selection of the official who is tasked with exercising a particular function, or taking a particular decision, on behalf of the authority is, in principle, a matter amenable to judicial review.

In my judgment, it was not unlawful for decision-making on the Claimant’s case to have been undertaken within the IECA rather than the SCA. Neither of those “competent authorities” (a term used by the Defendant because it reflects terminology used in the ECAT) is established by legislation. Rather, they are simply operational units of the Home Office taking decisions on behalf of the Defendant and for which the Defendant is legally responsible. Although paragraphs 4.13-4.15 of the Guidance indicate the kinds of cases that will be allocated to be handled by the IECA, the reference in those paragraphs to “Home Office operational priorities relating to a cohort of cases” indicates room for flexibility for the Defendant to allocate cases between the two “competent authorities” in accordance with her operational priorities from time to time. In these circumstances, it was not a breach of public law standards for the Defendant to assign the Claimant’s case to her officials working within the IECA rather than her officials working within the SCA.

Public law principles require, as a general rule, that decision-makers adhere to their public policies with regard to how the decision-maker will exercise her statutory powers, in order to promote consistency in decision-making and avoid arbitrariness. But public law standards apply in a context-informed way. In my view, there is no reason why public law should hold the Defendant to her guidance in terms of which set of officials deals with a case, in circumstances where the procedures set out in the guidance were identical regardless of which officials were chosen.

For the avoidance of doubt, I see no realistic basis on which I could find that one set of officials was better than the other, so that the assignment of the Claimant’s case to the IECA is likely to have been the cause of the defective decision-making that I have found, under Grounds 1 to 3, occurred when the CG Decision was taken. In any event, whichever set of officials took the Reasonable Grounds decision and the Conclusive Grounds decision in the Claimant’s case, the Defendant’s legal responsibility for those decisions, and the legal standards that those decisions needed to meet, were the same.

For the reasons set out above, Ground 4 is dismissed.

For the reasons set out in this judgment, the claim for judicial review succeeds, albeit that I have not found for the Claimant on all his grounds of challenge. The CG Decision was unlawful and will be quashed. The Defendant must take a fresh Conclusive Grounds decision.

In my view, it is regrettable that the Defendant did not herself recognise at an earlier stage in the proceedings that the reasons given in the CG Decision could not withstand scrutiny, and agree to withdraw and retake the CG Decision. I note that Upper Tribunal Judge Church (sitting as a Judge of the High Court), when he granted permission to apply for judicial review, made the following observations:

I am full of admiration for Counsel for both parties, each of whom argued the case with considerable learning and skill. Ultimately, however, I have found this case to be essentially a simple one, and concluded that the CG Decision must be quashed for essentially the same reasons as were provisionally indicated by Judge Church. Given the pressures on the court system and the costs of proceedings such as these to the public finances, it is important that public authorities give due consideration to whether each judicial review claim for which permission to apply for judicial review has been granted can realistically be defended.