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Two linked appeals against decisions of the Administrative Court regarding human trafficking. William Irwin represented the Secretary of State, led by Sir James Eadie QC. William represented the Secretary of State at first instance in both cases, in MN’s case led by Gwion Lewis of Landmark Chambers and in IXU without a leader.
The case principally concerned the standard of proof to be applied by the Secretary of State in cases concerning human trafficking. The process for identifying trafficking victims involves two decisions – the reasonable grounds (RGs) decision and the conclusive grounds (CGs) decision. The RGs decision is made on a low standard of proof; a person is entitled to a positive RGs decision if the Secretary of State suspects but cannot prove that that person is a victim of trafficking. The CGs decision is made on the balance of probabilities.
The Appellants (with whom the Interveners agreed) contended that it was unlawful to apply the civil standard of proof at the CGs stage. The Appellants and Interveners said that relevant international instruments – in particular the Council of Europe Convention on Action against Trafficking in Human Beings (ECAT), the EU Trafficking Directive (2011/36/EU) and Article 4 ECHR.
The Court dismissed the Appellants’ challenge to the lawfulness of the standard of proof.
The appeals were allowed on other grounds. In the course of the judgment, the Court gave guidance on the analysis of expert evidence in trafficking claims (building on the judgment in Mibanga v Secretary of State for the Home Department  EWCA Civ 367) and upon the proper approach to the definition of human trafficking.