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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> TDT, R (On the Application Of) v The Secretary of State for the Home Department (Rev 1)  EWCA Civ 1395 (19 June 2018)
Cite as: (2018) 21 CCL Rep 525,  EWCA Civ 1395, 21 CCL Rep 525,  WLR 4922,  1 WLR 4922,  WLR(D) 380
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ON APPEAL FROM High Court, QBD, Administrative Court
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE FLOYD
DAME ELIZABETH GLOSTER
| R (ON THE APPLICATION OF TDT, BY HIS LITIGATION FRIEND TARA TOPTEAGARDEN)
- and –
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
- and –
|EQUALITY AND HUMAN RIGHTS COMMISSION
Mr Gwion Lewis (instructed by the Treasury Solicitor) for the Respondent
Ms Helen Mountfield QC (instructed by Equality and Human Rights Commission) for the Intervener)
Hearing date: 21st and 22nd February 2018
Crown Copyright ©
Lord Justice Underhill:
(1) The Appellant's detention. The Appellant was found by police with fifteen other young men or boys in the back of a lorry in Kent on 8 September 2015: six of them were also Vietnamese. The view was taken by the immigration authorities that he was over 18, and he was detained initially at the Dover Immigration Removal Centre and then at Brook House in Sussex, with a view to his being returned to Vietnam as soon as emergency travel documents could be obtained.
(2) Instruction of Maxwell Gillott. After a short period during which he was represented by a different firm of solicitors, on 23 October the Appellant was seen at Brook House by Ms Silvia Nicolaou Garcia of Maxwell Gillott ("MG" – at that time a trading style of Simpson Millar): I should say at this stage that her work on his behalf appears to have shown exceptional ability and commitment. He told Ms Nicolaou Garcia that his date of birth was 5 December 1999, which accorded with her own impression that he was significantly under 18. His account also indicated to her that he was a victim of trafficking. She passed that information to the Home Office case-worker the same day, and also wrote a short letter intimating an intention to bring proceedings for judicial review in respect of the failure to treat him as a child and his continued detention.
(3) Referral as a potential victim of trafficking. Ms Nicolaou Garcia arranged for the Appellant to be seen by Ms Tara Topteagarden, the Trafficked Boys' Adviser at the Refugee Council. She saw him on 28 October and referred his case that day to the Competent Authority under the National Referral Mechanism ("NRM") for potential victims of trafficking, of which I give more details below.
(4) The letter of 28 October 2015. On 28 October MG wrote a pre-action protocol letter to the Home Office, though it does not appear to have been sent till the following day. The letter challenged various aspects of the Appellant's treatment, including the failure to conduct an age assessment and to recognise him as a potential victim of trafficking. It gave a full account of the facts relied on as showing that he had been trafficked from Vietnam. The letter asked that he be released from detention, but it said that he was at serious risk of falling back into the hands of his traffickers unless his release was accompanied by a package of arrangements which minimised the risk of that occurring. In particular, MG said that he should be released into safe and secure accommodation, to be provided by the local authority, West Sussex County Council ("the Council"), for assessment and services under sections 17 and 20 of the Children Act 1989; that a multi-agency meeting should be arranged; and that his case should be referred to the Kent police and the Human Trafficking Team of the Metropolitan Police. The letter was also sent to the Kent Police and to the Council. I give more details of its contents at paras. 51-54 below.
(5) The Home Office's non-response. The Council replied promptly to MG's letter, agreeing in principle to the proposed arrangements for the Appellant's release, and in particular saying that it would supply safe accommodation for him. However, there was no response from the Home Office, despite a chasing letter sent the following day.
(6) Commencement of proceedings. On 6 November judicial review proceedings were issued in the High Court, with Ms Topteagarden acting as the Appellant's litigation friend on the basis that he was under 18.
(7) The Appellant's release. Later that same day the Appellant was granted temporary admission, on condition that he reside at an address in south London, which it is now known was in fact the address of a Buddhist temple: I will come back to the circumstances of this in due course. MG learnt from the Appellant early in the afternoon that his release was proposed and wrote immediately to the Home Office protesting that he should not be released without the package of arrangements sought in the pre-action protocol letter; but his release proceeded nevertheless.
(8) The Appellant's disappearance. The Appellant has not been seen by anyone, and has not been in contact with MG, from the moment of his release. The police have made enquiries as to his whereabouts but without success. It is his solicitors' belief that he has been re-trafficked.
THE EUROPEAN INSTRUMENTS
(1) The Anti-Trafficking Convention
"For the purposes of this Convention:
(a) 'Trafficking in human beings' shall mean 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;
(b) The consent of a victim of 'trafficking in human beings' to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used;
(c) The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered 'trafficking in human beings' even if this does not involve any of the means set forth in subparagraph (a) of this article;
(d) 'Child' shall mean any person under eighteen years of age;
(e) 'Victim' shall mean any natural person who is subject to trafficking in human beings as defined in this article.
For present purposes we are only concerned with Chapter III of the Convention, which is headed "Measures to Protect and Promote the Rights of Victims …". The relevant provisions under that chapter are as follows.
"1. Each Party shall provide its competent authorities with persons who are trained and qualified in preventing and combating trafficking in human beings, in identifying and helping victims, including children, and shall ensure that the different authorities collaborate with each other as well as with relevant support organisations, so that victims can be identified in a procedure duly taking into account the special situation of women and child victims ….
2. Each Party shall adopt such legislative or other measures as may be necessary to identify victims as appropriate in collaboration with other Parties and relevant support organisations. Each Party shall ensure that, if the competent authorities have reasonable grounds to believe that a person has been victim of trafficking in human beings [emphasis supplied], that person shall not be removed from its territory until the identification process as victim of an offence provided for in Article 18 of this Convention has been completed by the competent authorities and shall likewise ensure that that person receives the assistance provided for in Article 12, paragraphs 1 and 2.
3. When the age of the victim is uncertain and there are reasons to believe that the victim is a child, he or she shall be presumed to be a child and shall be accorded special protection measures pending verification of his/her age.
I have emphasised the phrase "if the competent authorities have reasonable grounds to believe that a person has been victim of trafficking in human beings" in paragraph 2 because it is adopted in the domestic arrangements to which I refer below.
"1. Each Party shall adopt such legislative or other measures as may be necessary to assist victims in their physical, psychological and social recovery. Such assistance shall include at least:
2. Each Party shall take due account of the victim's safety and protection needs."
I have not set out the various forms of assistance specified under paragraph 1 since no issue in relation to them arises in this case. For the same reason I need not refer to the extended discussion of the purpose of article 12 and its detailed requirements to which Mr Buttler referred us in paras. 146-171 of the Explanatory Report to the Convention, interesting and instructive though they are.
(2) Article 4 of the ECHR
"1. No one shall be held in slavery or servitude.
2. No one shall be required to perform forced or compulsory labour.
"There can be no doubt that trafficking threatens the human dignity and fundamental freedoms of its victims and cannot be considered compatible with a democratic society and the values expounded in the Convention. In view of its obligation to interpret the Convention in light of present-day conditions, the Court considers it unnecessary to identify whether the treatment about which the applicant complains constitutes 'slavery', 'servitude' or 'forced and compulsory labour'. Instead, the Court concludes that trafficking itself, within the meaning of Article 3(a) of the Palermo Protocol and Article 4(a) of the Anti-Trafficking Convention, falls within the scope of Article 4 of the Convention."
One consequence of that conclusion is of course that any obligations in relation to trafficking arising under article 4 are binding on public authorities as a matter of domestic law under section 6 of the Human Rights Act 1998.
"286. As with Articles 2 and 3 of the Convention, Article 4 may, in certain circumstances, require a State to take operational measures to protect victims, or potential victims, of trafficking (see, mutatis mutandis, Osman, [(2000) 29 EHRR 245] § 115; and Mahmut Kaya v. Turkey, no. 22535/93,  ECHR 129, § 115, ECHR 2000-III). In order for a positive obligation to take operational measures to arise in the circumstances of a particular case, it must be demonstrated that the State authorities 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 or exploited [emphasis supplied] within the meaning of Article 3(a) of the Palermo Protocol and Article 4(a) of the Anti-Trafficking Convention. In the case of an answer in the affirmative, there will be a violation of Article 4 of the Convention where the authorities fail to take appropriate measures within the scope of their powers to remove the individual from that situation or risk (see, mutatis mutandis, Osman, cited above, §§116 to 117; and Mahmut Kaya, cited above, §§ 115 to 116).
287. Bearing in mind the difficulties involved in policing modern societies and the operational choices which must be made in terms of priorities and resources, the obligation to take operational measures must, however, be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities … . It is relevant to the consideration of the proportionality of any positive obligation arising in the present case that the Palermo Protocol, signed by both Cyprus and the Russian Federation in 2000, requires States to endeavour to provide for the physical safety of victims of trafficking while in their territories and to establish comprehensive policies and programmes to prevent and combat trafficking … . States are also required to provide relevant training for law enforcement and immigration officials … .
288. Like Articles 2 and 3, Article 4 also entails a procedural obligation to investigate situations of potential trafficking. The requirement to investigate does not depend on a complaint from the victim or next-of-kin: once the matter has come to the attention of the authorities they must act of their own motion (see, mutatis mutandis, Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 69,  ECHR 303, ECHR 2002-II… ."
I have italicised the words "credible suspicion that an identified individual had been, or was at real or immediate risk of being trafficked" in para. 286 because their meaning and effect are central to the issue on this appeal.
"… [T]he member States' positive obligations under Article 4 of the Convention must be construed in the light of the Council of Europe's Anti-Trafficking Convention and be seen as requiring, in addition to prevention, victim protection and investigation, together with the characterisation as a criminal offence and effective prosecution of any act aimed at maintaining a person in such a situation (see Siliadin … § 112). The Court is guided by that Convention and the manner in which it has been interpreted by [the Council of Europe's Group of Experts on Action against Trafficking in Human Beings]."
It also re-stated, with a slightly different structure, what it had said in Rantsev about the positive obligations imposed by article 4. At paras. 86-89 it said:
"86. The Court refers to its relevant case-law on the general principles governing the application of Article 4 in the specific context of human trafficking (see, in particular, Rantsev … §§ 283-89). Having regard to the importance of Article 4 within the Convention, its scope cannot be confined merely to the direct actions of the State authorities. It follows from this provision that States have positive obligations, in particular, to prevent human trafficking and protect the victims thereof and to adopt criminal-law provisions which penalise such practices (see Siliadin, [73316/01,  ECHR 545, ECHR 2005-VII], § 89).
87. Firstly, in order to combat this phenomenon, member States are required to adopt a comprehensive approach and to put in place, in addition to the measures aimed at punishing the traffickers, measures to prevent trafficking and to protect the victims (see Rantsev … § 285). It transpires from this case-law that States must, firstly, assume responsibility for putting in place a legislative and administrative framework providing real and effective protection of the rights of victims of human trafficking. In addition, the States' domestic immigration law must respond to concerns regarding the incitement or aiding and abetting of human trafficking or tolerance towards it (see Rantsev … § 287).
88. Secondly, in certain circumstances, the State will be under an obligation to take operational measures to protect actual or potential victims of treatment contrary to Article 4. As with Articles 2 and 3 of the Convention, Article 4 may, in certain circumstances, require a State to take such measures (see L.E. v. Greece, no. 71545/12,  ECHR 107,center § 66, 21 January 2016). In order for a positive obligation to take operational measures to arise in the circumstances of a particular case, it must be demonstrated that the State authorities 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 or exploited within the meaning of Article 3 (a) of the Palermo Protocol and Article 4 (a) of the Anti-Trafficking Convention. In the case of an answer in the affirmative, there will be a violation of Article 4 of the Convention where the authorities fail to take appropriate measures within the scope of their powers to remove the individual from that situation or risk (ibid.).
89. Thirdly, Article 4 imposes a procedural obligation to investigate potential trafficking situations. The authorities must act of their own motion once the matter has come to their attention; the obligation to investigate will not depend on a formal complaint by the victim or close relative … ."
(a) a general duty to implement measures to combat trafficking – "the systems duty";
(b) a duty to take steps to protect individual victims of trafficking – "the protection duty" (sometimes called "the operational duty");
(c) a duty to investigate situations of potential trafficking – "the investigation duty" (sometimes called "the procedural duty").
The EU Directive
2. Member States shall take the necessary measures to ensure that a person is provided with assistance and support as soon as the competent authorities have a reasonable-grounds indication for believing that the person might have been subjected to any of the offences referred to in Articles 2 and 3.
5. The assistance and support measures referred to in paragraphs 1 and 2 shall be provided on a consensual and informed basis, and shall include at least standards of living capable of ensuring victims' subsistence through measures such as the provision of appropriate and safe accommodation and material assistance, as well as necessary medical treatment including psychological assistance, counselling and information, and translation and interpretation services where appropriate.
"1. Child victims of trafficking in human beings shall be provided with assistance, support and protection. In the application of this Directive the child's best interests shall be a primary consideration.
2. Member States shall ensure that, where the age of a person subject to trafficking in human beings is uncertain and there are reasons to believe that the person is a child, that person is presumed to be a child in order to receive immediate access to assistance, support and protection in accordance with Articles 14 and 15."
THE DOMESTIC REGIME
(1) If a potential victim of trafficking is identified by a "first responder" the case must be referred to the UK Human Trafficking Centre ("UKHTC"), which is a unit within the National Crime Agency. First responders comprise a number of designated governmental and non-governmental organisations, including the Home Office itself and the Refugee Council (for whom Ms Topteagarden worked).
(2) A designated "Competent Authority" – either the UKHTC itself or a unit within the Home Office – will, if possible within five days, determine whether there are reasonable grounds to believe that the person referred is a victim of trafficking. If such a determination is made they will be given a 45-day recovery and reflection period (longer than required by the Convention), with associated support.
(3) After the expiry of the 45 days, the Competent Authority will make a final decision as to whether there are, on the balance of probabilities, sufficient grounds to decide that he or she is a victim of trafficking – a so-called "conclusive grounds decision". There are various possible consequences of such a decision, but I need not rehearse them here.
The Modern Slavery Act 2015
"suspects but cannot prove this person is a potential victim of human trafficking on any UK referral."
"This is designed to determine whether someone is a potential victim. When the Competent Authority receives a referral, they must decide whether on the information available it is reasonable to believe that a person is a victim of the crime of … modern slavery … . The test the Competent Authority must apply is: whether the statement 'I suspect but cannot prove' the person is a victim of modern slavery …:
... is true
... whether a reasonable person having regard to the information in the mind of the decision maker, would think there are reasonable grounds to believe the individual had been a victim of human trafficking or modern slavery."
That is oddly worded, in various ways, but we were not addressed on the detail. The only point that matters for our purposes is that the test is characterised as one of suspicion falling short of proof. Later in the same sub-section the Guidance uses the term "reasonable suspicion".
OVERVIEW AND SUMMARY
"The application of the Guidance is not the mechanism by which the United Kingdom satisfies the procedural obligation under article 4."
(1) At para. 36 he drew a distinction between the threshold for the requirement on frontline staff to make a referral to the Competent Authority under the Guidance and the threshold that triggered the investigation duty under article 4. The former he described as "very low … – in reality, any suspicion or any claim", whereas the latter required "'credible suspicion' that a person has been trafficked".
(2) He held that the threshold set by the requirements of "reasonable grounds" in the Convention and the Guidance and "credible suspicion" were substantially the same. He said, at paras. 36-37:
"36. … [Counsel for the claimant] submits that 'credible suspicion' is not the same as 'reasonable grounds to believe'. To my mind, in using the term 'credible suspicion', just as 'potential trafficking' or indeed 'arguable claim' in article 3 cases, the Strasbourg Court is drawing a distinction between mere allegations and those with sufficient foundation to call for an investigation. The procedural obligation does not arise simply on the making of an allegation …
37. The decision of the Competent Authority in this case was for all practical purposes applying a threshold the same as 'credible suspicion' or 'arguable claim'. …"
(1) There is an obligation under the Guidance on front-line staff who encounter cases where there are indicators of trafficking to refer such cases to the Competent Authority. The threshold for this obligation is very low: see the observation by Burnett LJ in Hoang quoted at para. 31 (1) above. (This obligation does not explicitly arise from the Convention. It might, however, be thought to be necessarily implicit, since the UK has given the responsibility for making the necessary decisions to an authority which is not on the front line and it must accordingly be under an obligation to ensure that all potential cases are brought to the attention of that authority.)
(2) There is an obligation on the Competent Authority to make a positive reasonable grounds decision where there is a reasonable suspicion that the person referred is a victim of trafficking. This threshold is higher than that applicable at the first stage but, as the Guidance itself recognises, it is still "relatively low".
THE CREDIBLE SUSPICION THRESHOLD
Past History and Future Risk
(1) While it is entirely apt to speak of "suspecting" that a person has been trafficked, which is an existing state of affairs, it is arguably rather less apt to speak of "suspecting" a risk that something will happen in the future. But there is no difficulty of substance. The language in both cases reflects the fact that what is required is a judgement, on reasonable grounds, about something which is not at the stage in question capable of being known.
(2) It is both convenient and common to use the phrase (potential) "victim of trafficking" to refer compendiously to persons to whom the protection duty under article 4 is owed, even though strictly the phrase connotes only people who are already victims of trafficking and not those who are at real and immediate risk of being trafficked but have not been so far. But cases of the latter kind are likely to be very rare in practice; and the shorthand is sufficiently accurate for working purposes.
"Real and Immediate Risk"
"37. I accept that it is more difficult to establish a breach of the operational duty than mere negligence. This is not least because, in order to prove negligence, it is sufficient to show that the risk of damage was reasonably foreseeable; it is not necessary to show that the risk was real and immediate. But to say that the test is a high one or more stringent than the test for negligence does not shed light on the meaning of 'real and immediate' or on the question whether there was a real and immediate risk on the facts of any particular case.
38. It seems to me that the courts below were clearly right to say that the risk of Melanie's suicide was 'real' in this case. On the evidence of Dr Caplan, it was a substantial or significant risk and not a remote or fanciful one. Dr Caplan and Dr Britto (the claimants' expert psychiatrist) agreed that all ordinarily competent and responsible psychiatrists would have regarded Melanie as being in need of protection against the risk of suicide. The risk was real enough for them to be of that opinion. I do not accept [counsel for the Trust's] submission that there had to be a 'likelihood or fairly high degree of risk'. I have seen no support for this test in the Strasbourg jurisprudence.
39. As for whether the risk was 'immediate', [counsel for the Trust] submits that the Court of Appeal failed to take into account the fact that an 'immediate' risk must be imminent. She derives the word 'imminent' from what Lord Hope said in Van Colle v Chief Constable of the Hertfordshire Police  1 AC 225, para 66. In the case of In re Officer L  1 WLR 2135, para 20, Lord Carswell stated that an apt summary of the meaning of an 'immediate' risk is one that is 'present and continuing'. In my view, one must guard against the dangers of using other words to explain the meaning of an ordinary word like 'immediate'. But I think that the phrase 'present and continuing' captures the essence of its meaning. The idea is to focus on a risk which is present at the time of the alleged breach of duty and not a risk that will arise at some time in the future."
Generic or Specific Evidence
THE APPELLANT'S CASE
(1) THE CONTEMPORARY REPRESENTATIONS
"Plainly TDT's circumstances fit the description above. He was transported from Vietnam to the UK via Russia for the purposes of labour exploitation. He was told to sign a contract where he was told he owed his traffickers a 'debt', he was told he would receive 'higher wages abroad' and was then tricked, locked up and mistreated in Russia and various other locations on his way to the UK. The exploitation of young Vietnamese boys in cannabis farms or nail bars in the UK is well-known."
(As I have said, that is a summary of facts more fully stated in the earlier section.) The letter says that the Appellant's appearance, as "a 16-year old Vietnamese boy with an expression of fear or anxiety who feels lonely in detention and does not engage or interact with the other detainees", clearly corresponds to the indicators of fear, anxiety and depression listed in section 7.3 of the Front-line Guidance (see para. 26 above).
"TDT may still be under the control of his traffickers and will be vulnerable to their threats and coercion when he is released from immigration detention. The two other Vietnamese children referred in page 5 of this letter went missing/were re-trafficked from their foster placements on 29 September 2015 and 23 October 2015. We understand Kent Police is currently investigating their disappearance. The June 2012 Report from the Joint Inquiry into Children who go Missing from Care makes clear how common it is for Vietnamese children to be re-trafficked from their foster placements after being released from immigration detention. Paragraph 38 of that report summarises the Office for the Children's Commissioner ["OCC"] for England's evidence during the Inquiry:
'Evidence to the Inquiry showed that certain profiles of trafficked children go missing immediately. For these groups, it is particularly important that immediate interventions take place – preferably within 24 hours of being placed into care – to prevent these children going missing. Indeed, the OCC, in relation to child trafficking in Kent, recommend that "Given that virtually all of the Vietnamese children who arrived in Kent in 2010 went missing and the only ones recovered (to date) were those found working in cannabis factories, OCC is of the view that all unaccompanied Vietnamese children should be regarded, prima facie, as having been trafficked". The OCC also suggested that for some potential victims, police surveillance should be considered "with the aim of catching those responsible for trafficking … bringing them to justice.' [Emphases in original]"
The evidence that a high proportion of Vietnamese children go missing on release is particularly important for our purposes.
"[TDT] explained to me that he was brought to the UK earlier this year by an agent. He was working in construction at the time in order to support himself. He was approached by the agent who had spoken to his boss and who told him he could earn more money working abroad. [TDT] explained to me that he had lost his parents, he was on his own and felt that he had nothing to lose by agreeing to this. [TDT] understood that he would have to pay for the journey by working as he was given a 'contract' that stated this. He did not know what work he would be doing or how long for or how much exactly he would owe.
[TDT] spoke about travelling by plane to Russia and then overland to the UK. He was detained on arrival and was placed in Dover IRC before being transferred to Brook House.
The Refugee Council has been involved with a number of other young people who we believe may have travelled with [TDT] and may have been trafficked by the same people. Three of these young people have gone missing from care and two remain missing whilst the third was returned to his foster placement. It is overwhelmingly likely that these children have been re-trafficked and are currently being exploited by the people who brought them here. We are extremely concerned about [TDT's] safety and believe it is of the utmost importance that he is recognised as a potential victim of trafficking to ensure he receives the appropriate level of support and protection. We will continue to support him and to build a relationship of trust in order to ascertain more information about his trafficking and ensure he is able to engage with support services who will work to alleviate the pressure and control that traffickers exert over their victims."
Ms Topteagarden also ticked a number of boxes on the appropriate form as indicators that the Appellant may have been trafficked. These included that he "shows signs of emotional neglect" and was "socially isolated" – also that he had a mobile phone, which is significant partly because it was a means by which he could remain in touch with his traffickers while in detention.
(2) THE GENERIC EVIDENCE BEFORE THE JUDGE
(a) an expert report (and an addendum) from Christine Beddoe, the former Director of ECPAT UK [End Child Prostitution, Pornography and Trafficking] and adviser to the All-Party Parliamentary Group on Trafficking;
(b) a witness statement from Andy Desmond, a former police officer who is now a freelance consultant on trafficking issues;
(c) a witness statement from Chloe Setter, the Head of Advocacy, Policy and Campaigns at ECPAT UK and Chair of the Home Office Child Trafficking Sub-Group;
(d) three witness statements from Ms Nicolaou Garcia;
(e) a witness statement from Ms Topteagarden.
Reliance was also placed on certain published reports and other materials most of which were referred to in the witness evidence, including in particular a letter to MG from the OCC. Of course the reports and witness statements were not before the Secretary of State at the time of the Appellant's release; but they state facts and refer to materials which it is said were or should have been known to the Home Office and express opinions about whether those facts and materials passed the credible suspicion threshold.
"When TDT arrived in the UK in September 2015 there was already a vast array of police and UK Border Agency intelligence, and information published by the UK Human Trafficking Centre, the Child Exploitation and OnLine Protection Centre and the National Crime Agency, for all authorities to be alert to the trafficking profile of young Vietnamese males trafficked for exploitation in cannabis factories or other forms of criminal activity and sexual exploitation. TDT fits this profile."
In the following paragraphs she goes on to give particulars of the materials in question, which include reports published in 2009 and 2010 by the Child Exploitation and Online Protection Command ("CEOP"), part of the National Crime Agency; a report from the Children's Commissioner for England published in 2011 on "Landings in Kent"; and a "Strategic Threat Assessment" published by UKHTC in 2014 on the nature and scale of human trafficking into the UK in 2013. These reports, of which copies were before us, clearly make good her statement.
"The position we took in relation to Vietnamese young people arriving unaccompanied remains the same as it did when we reported to the inquiry. In particular, we consider that all unaccompanied Vietnamese young people arriving in the UK should, by virtue of their nationality, be considered at immediate risk of having been trafficked."
(Strictly, that post-dates the Appellant's release by a couple of weeks, but of course it simply confirms what the Commissioner had already said.)
(3) THE OTHER VIETNAMESE
THE SECRETARY OF STATE'S CASE
(1) The early CRS notes are essentially concerned with attempts to obtain emergency travel documents and the justification for detaining the Appellant in the meantime. The principal decision-makers were not at Brook House but were part of a Home Office "NRC" team in Birmingham.
(2) A note dated 23 October records that the Appellant's representatives say that he was born on 5 December 1999 and is a victim of trafficking. It is clear from Ms Nicolaou Garcia's witness statement that that reflects a phone call from her to the Home Office following her visit to the Appellant that day. The same note also says that there has been a Merton-compliant assessment of the Appellant's age; that was simply wrong.
(3) The receipt of the pre-action protocol letter sent on 28 October is recorded on 2 November (a weekend had intervened) and various administrative consequences are noted; but there is no record of any substantive consideration of its contents.
(4) On 3 November the notes record that emergency travel documents cannot be obtained. On the same day a "detained case worker" addresses a note to his colleagues saying that he believes the Appellant to be a "deemed PVoT" [potential victim of trafficking] and that "an application has been raised". This must, I think, be a reference to Ms Topteagarden's NRM referral on 28 October. The note goes on to point out that the Appellant's age is disputed and that there has been no Merton assessment and asks whether the team "wish to continue to treat this subject as a minor"; but there is no apparent response to that query.
(5) There are notes dated 5 and 6 November recording that the Appellant would have to be released from detention, partly because there was now no prospect of obtaining emergency travel documents in the near future but also because, as the note records, "the PVOT RG [potential victim of trafficking reasonable grounds] decision remains outstanding and there is a real chance that a positive RG decision will be made". The note records that "a safe release address" will be needed and that Brook House had been asked to provide one.
(1) The judicial review proceedings were served on the Secretary of State at 12.48 pm, together with an application for urgent consideration. The application made it clear that the Appellant should not be released without "a robust risk assessment, protective plan and specialist accommodation in place": this of course is what had already been sought in the pre-action protocol letter. The CRS shows that the proceedings were forwarded by e-mail to the NRC team in Birmingham forthwith.
(2) At about 1.30 pm the Appellant was interviewed by an immigration officer at Brook House. There was no interpreter present but the Appellant told Ms Nicolaou Garcia in the conversation referred to below that a fellow-detainee had tried to translate, and he appears to have understood that he was going to be released and that he was being asked for a release address.
(3) At about 2.30 pm Ms Nicolaou Garcia (through an interpreter) spoke to the Appellant on the telephone and he told her of that interview. She understood that he had not so far supplied a release address. She wrote at once to the Government Legal Department reminding them of the issue of proceedings and insisting that he should not be released except in accordance with the precautions sought in the pre-action protocol letter and the application. The letter was sent at about 3.15 pm
(4) At some point in the afternoon – it is not clear when – the Appellant gave staff at Brook House a release address in Upper Norwood in South London. There is no record of any consideration by the staff of whose the address was or how the Appellant came to have it: plainly one possibility is that he was given it by traffickers. Police enquiries have since established that, as I have said, it was in fact not a residential address at all but that of a Buddhist temple.
(5) Later that day the Appellant was released. Police enquiries have since established that he was seen with another man at Gatwick railway station. There is no record of him ever having gone to the temple.
(6) The CRS suggest that an attempt was made by the NRC team to contact the Appellant's representatives after he had been released, by fax and phone; but no such message was received by MG, and it was not until four days later that Ms Nicolaou Garcia learnt of his release from the Government Legal Department.
THE JUDGMENT OF McGOWAN J
"27. If there was a credible basis to suspect that [TDT] was trafficked into the UK then he has not been offered reasonable protection against being re-trafficked. The questions at the core of the case are, first, was he trafficked or was there enough material to give rise to a credible suspicion that he had been trafficked? Second, if he was trafficked does that mean that he was at a real and immediate risk of being re-trafficked?
28. Applying the test set out in Rantsev to the issues, namely, 'In order for a positive obligation to take operational measures to arise in the circumstances of a particular case, it must be demonstrated that the State authorities 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 or exploited'. What are the circumstances said to give rise to the credible suspicion? It is accepted that simply being a Vietnamese national of about 18 years of age is not enough. The incidence is high but not high enough for that automatically to give rise to grounds for a credible suspicion. It is submitted on the Claimant's behalf that there is more, there is the fact that he was travelling in a lorry with other Vietnamese males, who were thought may be victims of trafficking and that one of them had disappeared from foster care and two from detention. It is also submitted that those who represent him had put forward evidence of their belief that he was under 18. There were 16 males in the same lorry, 9 of whom were not Vietnamese nationals. There is no suggestion that the other nationals were victims of trafficking. It is difficult to see how the Claimant's presence in the lorry with other Vietnamese, about whom the same concerns were expressed, can without more, amount to grounds for credible suspicion. It is further submitted that three of the other Vietnamese males had disappeared by 6 November. That is true but one returned in due course. That such persons disappear frequently and for a variety of reasons is obvious.
29. On the age issue it is clear, given that the male who disappeared and returned was in foster care that some consideration had been given to the age of the detainees and he had been assessed as young enough for foster care rather than detention. The immigration officials who considered the age of the detained Vietnamese nationals must, on the day of detention or later, have applied the guidelines and determined that at least one of them was or may have been under 18. The determination of the Claimant's age at that point is disputed but it is not demonstrably unreasonable. There was a conflict of opinion which was not determined before his disappearance. The certainty on the part of the Claimant's witnesses that he was under 18 and has since been trafficked does not prove that he has and does inform the decision taken on 6 November 2015, which is the decision under challenge.
30. Although I do not find such grounds established I have gone on to consider the Rabone test, namely, looking for a substantial or significant risk of re-trafficking which is present and continuing. On the premise that there were grounds for the credible suspicion that the Claimant had been trafficked into the UK it is argued that having been trafficked he was at a real and immediate risk of being re-trafficked. Even if there were credible grounds for suspicion, what more is there to give rise to a real and immediate risk? It is accepted that being Vietnamese and about 18 is not enough but that, actually, is the basis upon which the submission is founded. It is said that in such cases it is common practice for contact between the traffickers and the trafficked to be re-established after detention and for there to be a 'voluntary' or forced reunion. Accepting that evidence, it is still based on the age and nationality of the Claimant without any or any sufficient additional grounds to establish the basis of this challenge.
31. Accordingly, I do not find an operational breach of Article 4 in this case. …"
(1) At paras. 28-29 the Judge considers the first element in the Rantsev formulation, namely whether there was a credible suspicion that the Appellant had been trafficked. She finds that the facts before the Secretary of State amounted to no more than that he was Vietnamese and "about 18" and that that was not enough to give rise to such a suspicion. She rejects the argument that the fact that he was arrested with other Vietnamese young men, or that he was alleged to be under 18, constituted "something more".
(2) At para. 30 she considers the other element, namely whether the Appellant was at real and immediate risk of being re-trafficked. But, as she points out, such a risk only in practice arose if the first criterion was satisfied; and thus unsurprisingly she rejects his claim on this basis too.
Lord Justice Floyd:
Dame Elizabeth Gloster:
Note 1 Article 18 requires member states to make trafficking a criminal offence. [Back] Note 2 The Guidance is designed to cover the position both in England and Wales, where trafficking is an instance of “modern slavery”, and in the other parts of the UK, where it is not. I have omitted the wording relating to Scotland and Northern Ireland. [Back] Note 3 In fact neither Rantsev nor Chowdhury uses the phrase “credible suspicion” in the context of the investigation duty, but Burnett LJ noted that it had been used by the Court in CN v United Kingdom (2013) 56 EHRR 24 – see para. 26 of his judgment. [Back] Note 4 The position would be different if the Authority made its decision on the basis of further information which was not available at the time of the referral; but, although the Guidance makes clear that such information may be sought, the short time frame means that that may be unusual. [Back] Note 5 It is to be noted that if the decision had been made within the five-day period referred to in the Guidance, instead of taking almost three weeks, it would have been available before the Appellant’s release and would, one would hope, have led to his case being dealt with differently. The delay in dealing with the referral was not, as such, part of the Appellant’s case, but it is on the face of it very regrettable. There may be a good reason for it; but, as I note below, the Secretary of State has never filed any evidence in these proceedings, so it remains unexplained. [Back]
Note 1 Article 18 requires member states to make trafficking a criminal offence. [Back]
Note 2 The Guidance is designed to cover the position both in England and Wales, where trafficking is an instance of “modern slavery”, and in the other parts of the UK, where it is not. I have omitted the wording relating to Scotland and Northern Ireland. [Back]
Note 3 In fact neither Rantsev nor Chowdhury uses the phrase “credible suspicion” in the context of the investigation duty, but Burnett LJ noted that it had been used by the Court in CN v United Kingdom (2013) 56 EHRR 24 – see para. 26 of his judgment. [Back]
Note 4 The position would be different if the Authority made its decision on the basis of further information which was not available at the time of the referral; but, although the Guidance makes clear that such information may be sought, the short time frame means that that may be unusual. [Back]
Note 5 It is to be noted that if the decision had been made within the five-day period referred to in the Guidance, instead of taking almost three weeks, it would have been available before the Appellant’s release and would, one would hope, have led to his case being dealt with differently. The delay in dealing with the referral was not, as such, part of the Appellant’s case, but it is on the face of it very regrettable. There may be a good reason for it; but, as I note below, the Secretary of State has never filed any evidence in these proceedings, so it remains unexplained. [Back]