In R (TDT, by his litigation friend Tara Topteagarden) v Secretary of State for the Home Department [2018] EWCA Civ 1395 the Court of Appeal considered the threshold at which the duty to protect trafficked persons under article 4 of the European Convention on Human Rights comes into play and what that obligation entails.

The case concerned a young Vietnamese man, discovered in the back of a lorry and claiming to be a child, who was released from detention and disappeared. His solicitors had sought to ensure that he would be released under arrangements that would minimise the risk of his falling into the hands of traffickers. Instead TDT was released to an address that, it subsequently transpired, was not a residential address as claimed, but a Buddhist temple. Police identify that he was last sighted, with a man, at Gatwick railway station. He has not been found since.

The judgment is haunted throughout by the image of an adolescent, out there somewhere, being exploited.

Case clarifies obligations under trafficking convention

In its judgment, the court explained that although the Council of Europe Convention on Action against Trafficking in Human Beings is not incorporated into domestic law it is the source of obligations toward trafficked persons under article 4 of the European Convention on Human Rights (ECHR). These are examined in detail (paragraphs 12-16)(paragraphs 12-16) in passages that will be of considerable assistance to legal representatives wishing to rely on specific obligations under the Council of Europe convention.

Following Chowdhury v Greece in the European Court of Human Rights (application no. 21884/15), the Court of Appeal (paragraph 17) classified the duties imposed by Article 4 ECHR in trafficking cases into:

• a “systems duty”: to implement general measures to combat trafficking;
• a “protection” or operational duty, which arises in respect of those who have been trafficked and those at real and immediate risk of being so; and
• an “investigative”, or procedural, duty.

This case concerned the protection duty and that led the Court to tackle the notion of the “Competent Authority“.

Protection duty arises when state has credible suspicion of trafficking

When the Home Office set up the “national referral mechanism” for helping trafficking victims it took a term of international and domestic law, the “competent authority” and warped it from its usual meaning, the State authority competent in the particular circumstances of the case, into a monolithic notion of a single body which would gatekeep all the UK’s obligations toward trafficked persons. The judgment is an important corrective to that view.

The Court of Appeal held that the Secretary of State will come under the protection duty some time before a decision is taken by the Competent Authority that there are “reasonable grounds” for thinking that a person is a “potential victim of trafficking”. The duty arises when a member of the frontline staff of the authority competent to deal with a person refers that person to the Competent Authority (paragraph 35).

Or, as the court put it elsewhere, the duty kicks in when it is demonstrated that the “State authorities” (not the Competent Authority):

were aware, or ought to have been aware, of circumstances giving rise to a credible suspicion that an identified individual had been, or was at real and immediate risk of being, trafficked [paragraph 18 of the judgment, citing Rantsev v Cyprus and Russia (application no. 25965/04), paragraph 286].

The court identified (paragraph 15) that the threshold for the protection obligation to be engaged is stated in Rantsev to be that of a “credible suspicion” and considers what this means.

Credible suspicion is a low threshold

The Court of Appeal held that it is the equivalent of the term “reasonable grounds for suspicion” used in the Council of Europe convention and is a relatively low threshold. It suffices, as was held in CN v UK (application no. 4239/08) at paragraph 72, that the putative victim’s account is “not inherently implausible”.

Lord Justice Underhill considered what it means to find that a person is at “real and immediate risk” in the context of Article 4, pointing out that neither the Strasbourg court nor a UK court had previously dealt with this. He held that the risk “need not be imminent to be immediate” (paragraph 45). This is a somewhat Delphic phrase, and, indeed, the word “imminent” is used elsewhere in the judgment.

The court followed Sedley LJ in Batayav v Secretary of State for the Home Department [2003] EWCA Civ 1489 (paragraphs 37 and 38) in holding that this is not a probability test. It is a fact-sensitive exercise, about a risk sufficient that protective measures are needed.

Nonetheless, probabilistic evidence may have a role to play and Underhill LJ observed

If there were clear statistical evidence that 95% of all young Ruritanians entering the UK illegally were victims of trafficking, I cannot see why that by itself would not justify (at least) a credible suspicion that any particular young Ruritanian illegal entrant had been trafficked.

The material before the Secretary of State justified a “credible suspicion” at the point of release that the appellant was a victim of trafficking and at real and imminent risk of re-trafficking on release if protective measures were not taken (paragraphs 77 and 80). The court observed that having been trafficked and being at risk of re-trafficking are closely interrelated (paragraph 82), a clear statement on which representatives in future cases will be able to rely.

The Court of Appeal found “unattractive” in this context the argument by Clive Lewis QC for the Secretary of State that the protection obligation should not impose an unduly restrictive burden in circumstances where there had been no considered decision-making at all. It further held that no disproportionate burden would have been imposed by release into safe accommodation (paragraph 83).

Incompetent Authorities

The judgment points out, in a footnote, that had the “reasonable grounds” decision been taken within the five-day period envisaged in Home Office guidance it would have been available before TDT’s release. It adds that the delay “remains unexplained” because the Secretary of State never filed any evidence in the proceedings. “Remarkably”, nor did he file a witness statement or reply to the pre-action protocol letter.

The court does its best to fill in the gaps from the case record sheet. What it calls the “sorry story” derived from this document will encourage lawyers to ask for disclose of it in all cases.

More than “remarkable”, Underhill LJ finds it “reprehensible” that once the TDT’s age was put in issue, and indeed had been raised in the case record sheet

no attempt was made by the responsible Home Office staff to reach a considered view on the question and to await a Merton assessment if necessary [paragraph 85].

The Court of Appeal was satisfied, and the Secretary of State did not take the point, that given the instructions that had been obtained from TDT prior to his disappearance his representatives continued properly to be instructed. Given the possibility of his reappearance and a subsequent damages claim there was a purpose in continuing the proceedings. This is an important reminder to legal representatives of the important of getting instructions that are as comprehensive as possible from potential trafficked persons who might subsequently disappear.