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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Mutesi, R (On the Application Of) v Secretary of State for the Home Department [2015] EWHC 2467 (Admin) (18 June 2015) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2015/2467.html Cite as: [2015] EWHC 2467 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		18 June 2015

1. MRS JUSTICE ELISABETH LAING: This is an application for judicial review of a decision of the Competent Authority ("the CA") dated 30 July 2014. The decision was that, on the balance of probabilities, the Claimant was not a victim of human trafficking ("VoT"). That decision was supported by a consideration minute, which gave the reasons for the decision.
2. At the hearing the Claimant was represented by Miss Hooper and the CA by Miss Rowlands. I am grateful to both of them for their written and oral submissions.
3. The Claimant's case is that she is a VoT. In short, she claims that she was introduced in Rwanda to a man called Michael. He promised her an office job in the United Kingdom and that she could continue with her education. He arranged her journey to the United Kingdom. When she arrived, he and a woman called Bola took her to a house and forced her to work as a prostitute. This summary appears in the reasons for the decision.
4. Human trafficking is the subject of a Council of Europe Convention; the Council of Europe Convention on Action against Trafficking in Human Beings, and its Explanatory Report. I will refer to this as "the Convention". Article 4a of the Convention defines human trafficking as follows:

i. "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. Exploitation shall include, at a minimum, the exploitation of the prostitution of others, or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs."

5. That definition has three components. That definition has been applied by the CA, analysed in that way, in the decisions in this case, as I shall explain.
6. The Secretary of State has given effect to the Convention in two sets of guidance: "Victims of human trafficking - Competent Authority guidance" and "Victims of human trafficking - guidance to frontline staff". There is now a directive on human trafficking: Directive 2011/629JHA ("the Directive"). Neither side asked me to look at it, or made submissions about it. The Directive, among other things, requires Member States to take measures to criminalise human trafficking. Article 11 requires Member States to take the necessary measures to ensure that support and help are available for VoTs.
7. The claim in this case was lodged on 2 October 2014 and on 22 January 2015, Knowles J CBE granted permission to apply for judicial review on the papers.
8. The facts
9. I have taken these from the summary in the decision of 30 July 2014. The summary, in turn, is said to be based on a document sent to the CA by the Salvation Army ("the SA") and on an interview with the Claimant which took place on 19 June 2014.
10. The Claimant is a national of Rwanda. She claimed asylum on 23 April 1998. That claim was refused on 17 August 1999. She made further submissions in January 2014. They are still outstanding.
11. Her claim was that during the genocide in 1994 she saw the attack and rape of her sisters, who were all killed. She said that she was also raped and she fled to another part of Rwanda, Kigali. She fled with a family to Kigali and stayed there with the wife and a boy.
12. She started looking for work when she was 12 years old. She started to work fetching water and was then introduced by the woman with whom she was staying to a friend of hers, who was called Michael. Her claim was that Michael promised to bring her to the United Kingdom to work in an office or hotel and to continue with her schooling. Her journey was arranged by Michael and she was brought to the United Kingdom by 'plane in 1998.
13. When she arrived at the airport, she was driven by a woman called Bola, who was Michael's friend, to a house. She was there forced into prostitution by Bola and Michael. When she refused to work, they beat her and did not give her food and gave her no blankets. They threatened her with violence and said they would contact the police who would arrest her. She worked every day and was taken to pubs and clubs to work. She was not paid for the work that she did. She worked there from 1998 until 2004.
14. Her claim was that managed to escape in 2004 after being raped. The people who were in the house went back to drink and dance and ended up falling asleep on the floor. They had accidentally left the back door unlocked, which is how she escaped.
15. She walked in the streets and said that she lived on the streets for six years from 2004 to 2010. She said that she did not approach the police because she was scared after what Michael had told her. In 2010 a woman called Irene invited her to a church and took her to her house to stay. The Claimant told Irene what had happened and Irene obtained a solicitor for her. She had then been receiving counselling from Hestia.
16. A referral under the national referral mechanism referral was made by an SA caseworker on 23 March 2014. In that referral the caseworker identified a number of indicators of human trafficking which were set out in the decision letter and which I do not need to repeat in this judgment.
17. On 27 March 2014, the Home Office made a positive reasonable grounds decision in the Claimant's case giving her a recovery and reflection period until 10 May 2014. The Claimant was then accommodated at an address provided by Hestia where there were no known risks from her traffickers.
18. The reasonable grounds decision
19. The reasonable grounds decision made on 27 March 2014 summarised the Claimant's case as it emerged from the referral by the SA. It then recited the relevant definition of human trafficking, which I have already referred to, and then considered the objective evidence about the prevalence of human trafficking in Rwanda and in the United Kingdom. The conclusion was expressed in this way:

i. "The facts of the Claimant's case have been considered in line with the above definition of trafficking in order that a reasonable grounds decision can be made. It is considered that the Claimant has provided an internally consistent account to the required standard of proof which is "I suspect but cannot prove"."

20. The decision maker considered that the Claimant met each of the three elements in the definition of human trafficking to the relevant standard. The decision maker also concluded that the Claimant needed more time to get access to the support afforded to her by the Convention and that she would benefit from a reflection and recovery period.
21. Letters from the Claimant's solicitors
22. It is convenient here to mention three letters from the Claimant's solicitors. On 23 January 2014 Cardinal Solicitors wrote to the Secretary of State, making representations in support of a "fresh claim" for asylum. The heading of this letter refers to the Claimant as Miss Kaiza "aka Sonia Mutesi". The further submissions were that the Claimant was a victim of trafficking and that Rwanda was unsafe (see the undated further submissions pro forma which names Cardinal Solicitors as her representatives). The letter of 23 January 2014 makes long and elaborate legal submissions with frequent citations of authority, but is factually thin. In paragraph 17 it refers to the dangers for the Claimant on the streets of Somalia, which suggests that at least in part it has been cut and pasted from a claim of a different person altogether.
23. On 17 June 2014 the Claimant's current solicitors, who are not Cardinal Solicitors, wrote to the Secretary of State. The heading of the letter gave the Claimant's current identity, and two aliases. The current solicitors said that they had been instructed by the Claimant. They referred to the interview which she was due to have on 19 June 2014 and asked for copies of any documents sent to the Claimant and for a copy of the transcript of the interview. Their client, they said, would hand this letter into the Home Office at the interview. She was to be accompanied at the interview by a key worker from Hestia. The solicitors explained that because of her experiences in Rwanda, the Claimant was very vulnerable and her interview would need to be handled carefully, and conducted by an interviewer with appropriate experience. She had previously claimed asylum while under the control of her traffickers, and using different aliases. This would be her first interview in her real identity.
24. On 20 June 2014, the Claimant's current solicitors again wrote to the Defendant. They said that they had only just been instructed. They said that the Claimant had made an asylum claim at Liverpool on 27 January 2014. They said that she had made earlier asylum claims under different aliases while under the control of her traffickers. They referred to the reasonable grounds decision and the interview on 19 June 2014. They said that the Claimant's case was very complex. They had asked for her Home Office file and had contacted her previous representatives. They asked the Defendant not to make a decision on the asylum application or a conclusive grounds decision until they had been able to prepare her application.
25. The interview
26. The Claimant was interviewed on 19 June 2014. She was accompanied by Sadia Wain, a case worker from Hestia. The interview lasted from 1.00 pm until 3.22 pm. The record of the interview shows that the Claimant was asked, and answered, 99 questions. The interviewer appears to have been sensitive to the Claimant's feelings, and to have offered her breaks when the Claimant seemed to be upset. The interviewer did not at any stage challenge the Claimant's account or say that it was incredible in any respect.
27. The Claimant said that she did not know Michael's surname. She did not know where she was taken to; Michael had said that it was London. She did not know where in London. When she refused to work she was beaten, and not fed for days. Michael and Bola would pour cold water over her and not give her blankets to sleep in. She was threatened with violence and told that if she tried to escape, they would contact the police who would arrest her.
28. She had tried to escape on one occasion, was caught and beaten badly. She still could not fold her leg as a result; the bone was broken. She did not know where she was; she was not told. She managed to escape in 2004. She asked people how to get to London and they said keep walking. She cannot remember if she asked those people where she was.
29. She lived on the streets from 2004 until about 2010. She thinks that she was in London. She was begging. She did not go to the police because she was too scared. Michael had told her that they would arrest her and pull out her fingernails and toenails. In 2010 she was helped by a woman called Irene who saw her begging. She had her to stay at her house. She got the Claimant a solicitor when the Claimant told her what had happened to her.
30. It was at that stage that she had made her current claim. But, she clarified, her traffickers had taken her to the Home Office to apply for asylum in 1998. They gave her names to use and told her what to say. She did not know that she was claiming asylum. She was told to go somewhere and was told what to say. She went on to describe her current medical conditions and medications. She said that she was getting counselling. The Hestia support worker interjected that there was no medical report but that one could be got if the Home Office needed it. The support worker said that the Claimant was to get 30 weeks of counselling. It was much needed and was the first counselling which the Claimant had received. There was a letter to confirm this. There was no counselling report as yet because the Claimant had only just started counselling but one could be arranged and sent to the Home Office.
31. The Claimant was asked if she had contacted the police for an official investigation. She had not because she was too scared. The support worker interjected that the Claimant was too ill to do that and her priority was to get well. The Claimant was asked if she wanted to add anything at the end of the interview. She said, among other things, that she was scared of Michael and her life was in danger. She had seen him and his friend again in 2011 at Sutton Station and in November 2013 she had seen Bola in the street when she was on the bus.
32. The conclusive grounds decision
33. On 30 July 2014, the CA made the decision which is challenged. Paragraph 1 said that the Secretary of State had "investigated further" after the "reasonable grounds decision" to "help us decide whether you are a victim of trafficking". That required the Claimant to meet "a higher threshold test; that on the balance of probabilities" she was considered to be a VoT for the purposes of the Convention.
34. The author of the letter said that she was the CA responsible for considering the Claimant's case and for deciding whether the Claimant had "conclusive grounds" for being treated as a VoT for the purposes of the Convention. The CA had carefully considered the information provided by the Claimant.
35. The CA said:

i. "Although it initially appeared that there were reasonable grounds to believe that you may have been trafficked, no further evidence has been produced to support that you have been trafficked. I have therefore decided based on the information available to me on the balance of probabilities that you do not meet the definition of a VoT for the purposes of the Convention."

36. The reasons for the decision are in an annex attached to it. The minute of the reasons referred to the reasonable grounds decision. It then said that "as a result of further investigations into your case" the caseworker had decided on the balance of probabilities that "you have not been trafficked". The minute then set out a summary of the Claimant's case. It then recited the definition of human trafficking from the Convention. It summarised this test as "the victim is coerced or deceived into a situation where they are exploited". The decision went on to say that there were three elements: an action (the person is subject to recruitment, transportation, et cetera); a means (the use, for example, of coercion or deceit); and a purpose (exploitation, such as sexual exploitation). The minute then referred to the relevant Home Office guidance which describes the 45-day reflection and recovery period, and which provides "the conditions for the full evaluation to conclusively decide if the person was a VoT at the date of the reasonable grounds decision."
37. The reasons then quoted objective evidence about Rwanda and the United Kingdom. This was said to confirm that Rwanda and the United Kingdom were countries where women were subject to exploitation and trafficking. The Claimant's account was therefore considered to be corroborated by objective evidence and to be broadly externally consistent.
38. The reasons said that all information received since the objective grounds decision had been carefully considered in order to make the conclusive grounds decision on "whether you have conclusively been trafficked." Additional information, in the shape of the Claimant's asylum interview (this is a mistake as the interview on 19 June was not an asylum interview) had been taken into account. It was considered that the Claimant had provided "an internally consistent account to the standard of proof on the balance of probabilities", but that "it has not been corroborated by external evidence".
39. The reasons then addressed the three-part test described earlier in the minute. It recited the Claimant's account of her journey to the United Kingdom, Michael's promises to her of an office job and that she could continue with her schooling, her arrival in the United Kingdom and the allegation that the Claimant had been taken to a house and forced to work as a prostitute. The reasons then said, "It is therefore considered that you were the subject to being transported", and that the Claimant therefore met part A of the definition.
40. The reasons then examined part B of the definition. The test was repeated, and the Claimant's account was set out in more detail. It was accepted the Claimant's account was internally consistent, but the reasons continued:

i. "There is no known police investigation into your claimed circumstances and no other known evidence to corroborate your own personal account of mistreatment. As such there is no evidence to the required standard of proof to accept that you were subjected to deceit, threat and the use of force."

41. The decision maker then considered part C of the definition. Part C of the definition was recited and extracts from the Defendant's guidance, including an irrelevant passage about the male victims. There followed these sentences:

i. "You claim to have been forced to work as a prostitute in the UK. Whilst your account is internally consistent. There is no evidence available to corroborate your own personal account of mistreatment."

42. The decision maker referred to evidence that the Claimant had received counselling and would be having a 30-week course of that, and to "some medical evidence" including a letter dated 19 June 2014, which said that the Claimant's current medical state was the consequence of receiving a negative decision on her asylum claim. That was considered insufficient evidence to substantiate her claim of being trafficked. The decision went on:

i. "There is no known other evidence to corroborate your own personal account of mistreatment to the required standard of proof."

43. The decision maker concluded that the Claimant did not meet the three elements of the test. The decision maker repeated that the test was not that the decision maker was certain that trafficking did occur. The correct test was that it was more likely than not to have taken place. Based on the information, it was not "accepted conclusively that" the Claimant had been trafficked from Rwanda. The "decision" was that:

i. "It has, therefore, been decided 'on the balance of probabilities' you are not a victim of trafficking..."

44. The guidance
45. It is trite law that if a decision maker publishes a policy or guidance about how particular decisions will be made or a particular power will be exercised, the decision maker will err in law if, without explanation, he departs from that guidance. See Lumba v Secretary of State for the Home Department [2011] UKSC 12; [2012] 1 AC 245.
46. The guidance provides for the test which is to be applied by the CA. It also provides, in some detail, for the process which is to be followed by the CA. There is a two-stage process. Stage 1 is what is called the "reasonable grounds decision". This is a decision made to a low standard of proof, described as "I suspect but cannot prove". If there is a positive reasonable grounds decision, the guidance provides that a potential VoT is entitled to a period of reflection and recovery lasting 45 days to be reflected in an appropriate grant of leave and, if appropriate, temporary release.
47. The next stage is described in the guidance as a "conclusive decision" or "conclusive grounds decision". The expectation is that that will be made on day 45 of the recovery period. If the CA cannot make a decision on the available evidence, it must make further inquiries or gather evidence. Despite its description, this "conclusive" decision, the guidance makes clear, is a decision which is required to be made on the balance of probabilities. The guidance says, "At the conclusive decision stage, you must consider whether on the balance of probabilities there is sufficient evidence to decide that the individual is a VoT." This means, "...based on the evidence available, trafficking... is more likely than not to have happened". A decision maker is not required to be certain. The CA is reminded to weigh, among other things, the credibility of the claim.
48. The guidance makes clear that a positive conclusive grounds decision will not necessarily lead to a grant of leave to remain.
49. The guidance also includes advice about making decisions on credibility. This is said to apply to decisions at both stages of the process. The guidance on this is full and careful. It says that clear credibility findings must be included in the consideration minute, including which events a decision maker accepts as having taken place and which not. Decision makers are advised to take into account coherence, internal and external consistency, and the level of detail in an account. There is advice about mitigating circumstances which might explain gaps or inconsistencies in a person's account, and which could lead a decision maker to accept an account which the decision maker might otherwise be disposed to disbelieve. Decision makers are advised that there may be good reasons why an account lacks detail or consistency. The guidance nowhere refers to a requirement for corroboration. It does not say that a claim which is not corroborated will be rejected.
50. The guidance also makes clear that potential VoTs are not obliged to co-operate with the police and some may not want the police to be involved at all. It continues that while an active police investigation may give weight to a claim, potential VoTs are not obliged to co-operate with the police and when considering a case, the CA must not penalise a potential VoT who is unwilling to cooperate with the police.
51. Discussion
52. I do not say that it would not have been open to the CA to make credibility findings adverse to the Claimant in this case. But in order to do that, the CA, consistently with the guidance, would have had to analyse the Claimant's account and weigh up how credible it was in the light of such matters as consistency and detail, seen in the context of the mitigating factors which are referred to in the guidance. There is no such analysis in the decision, and there are no express findings about credibility at all. Since the guidance requires such express findings, I am not prepared to infer that the CA found that the Claimant was not credible when the CA has not said so and has not explained how she has analysed the case in the light of the competing factors identified in the guidance. I reject Miss Rowlands' submission that the CA was not required to make express adverse credibility findings if in fact the claim was to be rejected on credibility grounds.
53. The witness statement of Mr Collins made for the purposes of this litigation cannot supply this gap. He was not involved in the decision, and I therefore give his evidence no weight. It is surprising that the Secretary of State considers that a court might be helped in a case such as this by an ex post facto commentary on the decision which is made by the decision maker himself, let alone by such a commentary which is made by a person who did not make the decision. The commentary is tendentious, unhelpful and vague. The passive voice is used throughout, so that the reader has no idea who is being referred to. It is also inaccurate. Mr Collins says in paragraph 13, "The conclusive grounds decision does not expressly find that the underlying case specifics of the Claimant's account are externally corroborated". This is the precise obverse of the reasoning in the decision, which expressly finds that the Claimant's account is not corroborated.
54. The absence of any express adverse credibility findings is, in this special context, fatal to the decision. Since I cannot find that the CA disbelieved the Claimant's account, I am driven to conclude that the CA must have believed it. If the Claimant's account was credible, it was evidence in support of her claim. It was evidence which was capable of proving the claim on the balance of probabilities. There was no evidence to set against her evidence, or, at least, none which is referred to in the decision. That being so, the Claimant had proved her claim to the required standard, and the CA should have found as much. At that point, the lack of corroboration, which, in my judgment, is treated by the CA as the determining factor, cannot tip the balance the other way.
55. I realise that it is difficult for the CA to make decisions such as this. But the guidance demands a high standard of reasoning from the CA, and rightly demands that if a decision is to turn on lack of credibility, the CA must carefully anaylse the relevant factors and explain her reasoning about credibility in her decision. It is unfair, and unlawful, for the CA to shy away from grappling with the issue of credibility, and then to refuse a claim on the basis that it is uncorroborated, especially where no opportunity has been given in interview for the Claimant to deal with any doubts about credibility which the CA may have.
56. That is enough to make the decision unlawful, in my judgment. But there are five further obvious flaws in the decision. To a greater or lesser extent, most are linked with the failure to make adverse credibility findings and to the failure, no such findings having been made, to appreciate, that, that being the case, the only relevant evidence about the claim was the Claimant's own account in interview, and to appreciate the significance of that. They also stem from the CA's flawed reliance on the lack of corroboration.
57. The CA said, at the top of the fifth page of the reasons:

i. "It is considered that within these documents [I think this means the Claimant's interview, mistakenly referred to as her asylum interview, and, possibly, also, other unidentified information received by the CA after the reasonable grounds decision] you have provided an internally consistent account to the standard of proof on the balance of probabilities..."

58. This should have led the CA to conclude that the Claimant had proved her claim.
59. But the sentence continues, "...However it has not been corroborated by external evidence". Further on, in relation to parts B and C of the test, the CA equated lack of corroboration to a failure to prove the claim to the required standard. The CA said, in relation to part B of the test, that the Claimant's account was internally consistent, but there had been no police investigation, and there was no other known evidence to corroborate her account; then, "As such, there is no evidence to the required standard of proof to accept that you were subjected to deception, threat and the use of force". The CA had a similar approach to part C of the test.
60. The further flaws are these. First, the decision letter recites that there has been no further evidence since the reasonable grounds decision. This is incorrect, as, after that decision, the Claimant was interviewed. What she said in her interview was further evidence. I reject Miss Rowlands' submission that the word "evidence" here means "evidence apart from the evidence provided by the Claimant in her account in interview".
61. Second, as I have already said, on a fair reading of the decision, the CA treated the lack of corroboration for the Claimant's account as determinative. Even in a criminal trial, where the standard of proof is higher than the balance of probabilities, there is no legal, or factual, requirement of corroboration. The prosecution may make a jury sure that a defendant is guilty on the basis of the uncorroborated evidence of one witness. It is therefore surprising, to say the least, that the Defendant has apparently required corroboration, whether as a matter of law or fact, in a decision which is to be made to the lower civil standard. In my judgment, if there is no requirement of corroboration in a criminal trial, the Defendant has erred in law in introducing one in this context, where the standard is the balance of probabilities.
62. Third, the Defendant has decided that the Claimant has met part A of the test on the basis of her uncorroborated evidence. The Defendant has simply accepted the Claimant's account of her journey to the United Kingdom and of Michael's involvement. That account was not corroborated. It is irrational, in the Wednesbury sense, to accept the Claimant's uncorroborated evidence that part A of the test is met while holding that she has not shown on the balance of probabilities that the other limbs of the test are met, when the evidence in support of each aspect of the test is the same, that is, the Claimant's uncorroborated account.
63. Fourth, the Defendant in accepting that account has apparently accepted, in summary, every material aspect of the Claimant's account; the summary of that account under the heading "Action - part A" contains each aspect of the test; action, means and purpose. The consideration under the heading "part A" is therefore apparently inconsistent with what follows.
64. Fifth, in this special context, the prominence given in the reasons to the Claimant's failure to contact the police, and thus, to the lack of any police investigation, is, without further explanation, erroneous. The guidance makes clear that VoTs may have very good reasons for not wanting to contact the police, and the Claimant, in her interview, clearly explained why she had not contacted the police. Miss Rowlands accepted that there was nothing in the reasons for the decision about this.
65. Neither counsel was able to tell me where the word "conclusive" comes from. It strikes me that it is a word which is at odds with the standard of proof which is applied in making the conclusive decision. It may be that this description has led the CA into error here, because the word suggests that this is a decision which requires more cogent proof than proof on the balance of probabilities.
66. Conclusion
67. This claim succeeds. I heard some submissions from counsel about relief during the hearing yesterday. Miss Rowlands accepted that it was not inevitable that the CA would reject the Claimant's account on reconsideration, and that there therefore was a purpose in quashing the decision if it was unlawful. Miss Hooper submitted that I should declare that the CA had erred in the decision by requiring corroboration, but that on the basis of other material in the decision, that the claim should succeed. Alternatively, she argued that the decision should be quashed and I should declare that the claim succeeds; in other words, that the Claimant is a VoT.
68. I reject that submission from Miss Hooper. First, the decision is either lawful or unlawful; it is not partly one and partly the other. Second, if the decision is quashed, I am not in a position to say that it is inevitable that the claim would succeed. Whether or not the claim that the Claimant is a VoT succeeds depends not on my view of the claim, but on the view which the CA, properly directing itself in law, takes of it. So subject to any further submissions on remedy, my provisional view at least is that I should declare that the decision is unlawful, quash it and remit the claim to the CA for the CA to reconsider it in the light of my judgment.
69. MRS JUSTICE ELISABETH LAING: Yes. Any there any applications --
70. MRS EASTY: Thank you, my Lady.
71. MRS JUSTICE ELISABETH LAING: -- or further submissions about remedy?
72. MRS EASTY: In terms of the remedy, I think my learned friend and I have discussed that we would ask that if it is possible to put in the new order a delay of 6 to 8 weeks. We would wish to put in further psychiatric and medical evidence and would ask for that time period. I do not think it is opposed, my Lady.
73. MRS JUSTICE ELISABETH LAING: Is that right?
74. MISS ROWLANDS: That is right.
75. MRS JUSTICE ELISABETH LAING: All right. Well, can I ask you both to draw up an order that reflects that, please? I can have a look at it and approve it.
76. Are there any other applications?
77. MRS EASTY: Costs.
78. MRS JUSTICE ELISABETH LAING: Anything to say about costs, Miss Rowlands?
79. MISS ROWLANDS: I have quite a lot to say, as it happens.
80. MRS JUSTICE ELISABETH LAING: Right.
81. MISS ROWLANDS: The first point is that we have not had a schedule of costs.
82. MRS JUSTICE ELISABETH LAING: I am assuming the Claimant has got public funding.
83. MRS EASTY: Yes, my Lady, yes.
84. MRS JUSTICE ELISABETH LAING: Would it be usual for you to provide a schedule of costs for a publicly funded Claimant? I do not think it would, would it?
85. MRS EASTY: I do not think so.
86. MISS ROWLANDS: I do --
87. MRS EASTY: I certainly have not been provided with one, but I was not anticipating one.
88. MRS JUSTICE ELISABETH LAING: No. I do not think I have ever seen a schedule of costs provided --
89. MISS ROWLANDS: No, if she is publicly funded. I thought she was not publicly funded.
90. MRS JUSTICE ELISABETH LAING: I see. All right.
91. MISS ROWLANDS: Then three other points.
92. First of all, my Lady, if I can ask you to look at what was originally sought and what the first grounds were. That is summarised at page 68 in the bundle.
93. You will see, my Lady, that there were four grounds. First, the question of corroboration.
94. MRS JUSTICE ELISABETH LAING: Yes.
95. MISS ROWLANDS: Second, a breach of Article 4. Third is essentially the same corroboration point again. Fourth is treating her not as a child.
96. MRS JUSTICE ELISABETH LAING: Right.
97. MISS ROWLANDS: Your Ladyship will appreciate that grounds 2 and 4 have not been pursued.
98. MRS JUSTICE ELISABETH LAING: Yes.
99. MISS ROWLANDS: It is really 1 and 3 together which have led to your Ladyship's judgment today.
100. The Article 4 point was only abandoned at the skeleton argument stage, as indeed was the point about her being a child. So we have had costs incurred in dealing with those two aspects of the claim.
101. The second similar point on that is that there was a good deal of argument, as your Ladyship has just recorded, about the outcome of the case. We have been successful as far as that is concerned in getting the decision quashed rather than a positive declaration being made.
102. MRS JUSTICE ELISABETH LAING: Well, there was not a lot of argument about that, to be fair.
103. MISS ROWLANDS: It certainly took up a significant part of the court's time.
104. So my Lady, those points would, in my submission, lead to some adverse finding on costs.
105. But the main point that I do urge upon your Ladyship; you have just heard from my learned friend that they want to put in further submissions. Obviously we have got no objections to that. We have invited them all along. We have said at every stage, "Tell us more and we will reconsider our decision." So we are at the stage now of they are going to tell us more and we will reconsider our decision.
106. This whole set of proceedings has, in my submission, been unnecessary. The Claimant has not obtained anything by this case that she could not have obtained by putting in those submissions at an earlier stage. Psychiatric evidence could have been obtained before we actually made this decision, let alone at any stage in the meantime.
107. In those circumstances, my Lady, I would argue that the Secretary of State should not bear the costs of these proceedings.
108. MRS JUSTICE ELISABETH LAING: Okay.
109. Miss Easty; Miss, Mrs?
110. MRS EASTY: Mrs Easty.
111. MRS JUSTICE ELISABETH LAING: Mrs Easty. Sorry, I was just guessing.
112. MRS EASTY: In terms of the points that were not argued, my Lady, you can see that it was a very minor part of the proceedings. It was highlighted in the skeleton that point 4 was not going to be relied upon.
113. My Lady, is the Defendant asking that that matter should be hived off from, say, the acknowledgment of service or the grounds of defence; that they want to have how many hours or minutes that that part took to draft off? Because again, these proceedings in court, where the lion's share of costs are dealt with, there was no part of this case to deal with either of those two grounds. So it is a rather odd argument.
114. In terms of there should not be any costs at all because we could have got a new decision at any time, well, that is completely extraordinary because the way the Competent Authority has come to her conclusion is by applying an erroneous test. Therefore, even if further evidence had been put forward in terms of psychiatric or medical evidence, that would not have amended the original decision which we have now had amended now.
115. MRS JUSTICE ELISABETH LAING: Yes.
116. All right. Would you like to say anything in reply, Miss Rowlands?
117. MISS ROWLANDS: I do not think there is anything that I need to reply to, unless there is anything that --
118. MRS JUSTICE ELISABETH LAING: No. Okay. That is very helpful.
119. Mrs Easty on behalf of the Claimant applies for an order requiring the Competent Authority to pay the Claimant's costs of the claim. That is resisted by Miss Rowlands on two bases for the Competent Authority.
120. First, she invites me to make a split order because she says that some of the grounds advanced in the claim form have not been pursued to the final hearing. Secondly, she invites me not to make an order for costs at all because she says the Competent Authority has always indicated a willingness to entertain further submissions and claim Claimant is now asking for further time in order precisely to make further submissions.
121. I deal with the latter point first. It seems to me that it was important for the Claimant to establish what the correct legal approach was to her case because if the Competent Authority was to maintain an incorrect approach in considering further submissions, that may well have led to a poor outcome for the Claimant. So it seems to me that the fact that the Claimant wishes now to put further submissions before the Competent Authority is not a reason for depriving her of her costs in principle in circumstances where the decision was unlawful and I have held it to be unlawful.
122. I turn next to the question of a split costs order. It seems to me that it would be very difficult as a matter of assessment to work out what costs were attributable to which aspect of the claim advanced and not pursued at which stage.
123. But more importantly, it seems to me that I have to look at this case broadly. Overall, the Claimant is the successful party and I do not see the fact that some of the arguments advanced in the claim form had not been pursued at the hearing as a sufficient reason for depriving her the of costs of the hearing.
124. I would order the Competent Authority to pay the Claimant's costs.
125. Are there any other points I can deal with? You presumably want a detailed assessment, Mrs Easty?
126. MRS EASTY: My Lady, thank you very much.
127. MRS JUSTICE ELISABETH LAING: All right. Detailed assessment.
128. Miss Rowlands, is there anything else I can usefully deal with?
129. MISS ROWLANDS: Not from me.
130. MRS JUSTICE ELISABETH LAING: Well, can I thank you very much, since you were at the hearing? Thank you very much, Mrs Easty, for coming along this afternoon and can you convey my thanks to Miss Hooper as well, please?
131. MRS EASTY: I will do.
132. MRS JUSTICE ELISABETH LAING: Thank you very much.
133. MRS EASTY: Thank you.