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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 >> Secretary of State for the Home Department v Minh  EWCA Civ 565 (20 June 2016)
Cite as:  EWCA Civ 565,  Imm AR 1272,  INLR 267
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Helen Mountfield QC, sitting as a Deputy High Court Judge
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE BURNETT
MR JUSTICE COBB
| SECRETARY OF STATE FOR THE HOME DEPARTMENT
|- and -
|HOANG ANH MINH
Martin Westgate QC and Keelin McCarthy (instructed by Lawrence Lupin Solicitors) for the Respondent
Hearing date: 24 May 2016
Crown Copyright ©
LORD JUSTICE BURNETT:
"1. No one shall be held in slavery or servitude.
2. No one shall be required to perform forced or compulsory labour.
The declaration was made on the basis that the United Kingdom had failed to comply with the procedural obligation implicit in article 4 ECHR to investigate cases of slavery and forced labour. The judge decided that the failure to abide by the Guidance in making the reasonable grounds to believe decision inexorably led to that conclusion.
The Anti-Trafficking Convention
"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, as 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."
The Public Law Challenge
i) That the Competent Authority set the threshold for reasonable grounds too high. The Guidance put it in terms of "I suspect but I cannot prove" but the decision maker in reality purported to decide the matter on balance of probabilities;
ii) That the Competent Authority failed to have regard to a US State Department report which provided some support for the respondent's described experiences of travelling from Vietnam to Russia and what he there encountered; and that it was a recognised pattern for people to be trafficked directly to the United Kingdom from Vietnam through Russia and then intermediate countries;
iii) That the Competent Authority failed to approach the question and significance of inconsistencies at the reasonable grounds stage in accordance with the Guidance;
iv) That the Competent Authority failed to consider evidence of the respondent's vulnerability and failed to approach the question of the means by which he may have been trafficked as required by the Guidance;
v) That the Competent Authority failed to consider in accordance with the definition of trafficking and the Guidance, whether the respondent's claimed experiences in Russia amounted to exploitation.
"For these reasons, I find that the reasonable grounds decisions taken by the Competent Authority in this case were flawed by failure to address the right question; to apply the right burden of proof; and failures to apply the sympathetic and inquisitorial approach to credibility advocated in the Defendant's Guidance."
Article 4 ECHR Challenge
"Ground Two: Breach of Article 4 ECHR
By reason of the matters set out at Ground One [the defendant] has breached the positive obligation on her to identify victims of trafficking."
The skeleton argument below, in so far as it touched on article 4 ECHR, reproduced the same words as had appeared in the grounds. The pleadings and skeleton argument filed on behalf of the Secretary of State below were similarly exiguous. The skeleton quoted from para 288 of Rantsev, which identified the procedural obligation under article 4 ECHR. It also quoted from para 71 of the court's later decision in CN v United Kingdom  56 EHRR 24, a case involving an allegation that a woman was trafficked to the United Kingdom and enslaved. The main complaint was that the laws in place in the United Kingdom were inadequate to comply with the first obligation identified in Rantsev. Additionally, the applicant alleged that there had been a failure to investigate her complaints. The judgment stated:
"The Court observes that in Rantsev, in the context of trafficking, it held that in order for an obligation to investigate to have arisen, the circumstances must have given rise to a "credible suspicion" that the applicant had been trafficked. Likewise, it considers that for an obligation to have arisen in the present case, it must be satisfied that the applicant's complaints to the domestic authorities gave rise to a credible suspicion that she had been held in domestic servitude."
"Counsel for the Claimant did not seek to analyse Ground 2 separately, and nor have I. If the decision-maker has not properly and fairly applied the Secretary of State's Guidance intended to protect the human rights of the putative victims of trafficking, then it will follow that there has been a breach of the positive obligations under Article 4. No other basis for suggesting a breach of Article 4 has been advanced, so if there is no failure properly and fairly to apply the Guidance, then there has been no violation of Article 4."
"In the circumstances, the decision-maker breached the positive obligation of reasonable investigation in Article 4 ECHR, contrary to section 6(1) of the Human Rights Act 1998."
In refusing permission to appeal the judge observed in her written observations that she had understood both parties to have agreed that
"the Guidance was the mechanism through which the United Kingdom complied with that positive obligation. The dispute was about whether the guidance had properly been applied the claimant contended that it had not and that it followed that there was a breach of article 4."
The Parties' Submissions
"Finally, the Court reiterates that trafficking is a problem which is often not confined to the domestic arena. When a person is trafficked from one State to another, trafficking offences may occur in the State of origin, any State of transit and the State of destination. Relevant evidence and witnesses may be located in all States. [T]he Anti-Trafficking Convention explicitly requires each member State to establish jurisdiction over any trafficking offence committed in its territory (see paragraph 172 above). Such an approach is, in the Court's view, only logical in light of the general obligation, outlined above, incumbent on all States under Article 4 of the Convention to investigate alleged trafficking offences. In addition to the obligation to conduct a domestic investigation into events occurring on their own territories, member States are also subject to a duty in cross-border trafficking cases to cooperate effectively with the relevant authorities of other States concerned in the investigation of events which occurred outside their territories. Such a duty is in keeping with the objectives of the member States, as expressed in the preamble to the Palermo Protocol, to adopt a comprehensive international approach to trafficking in the countries of origin, transit and destination (see paragraph 149 above). It is also consistent with international agreements on mutual legal assistance in which the respondent States participate in the present case (see paragraphs 175 to 185 above)."
MR JUSTICE COBB:
THE PRESIDENT OF THE FAMILY DIVISION