Court Of Appeal Rules Potential Trafficking Victim Entitled To Home Office Protection
The Law Of…Protecting Potential Victims Of Trafficking
The Court of Appeal has today handed down judgment in R(TDT) v Secretary of State for the Home Department. This is the first time that a domestic court has found there to be a breach of the duty to protect potential victims of trafficking under Article 4 of the European Convention on Human Rights.
Silvia Nicolaou Garcia, Community Care and Public Law Solicitor, explains the judgement.
Summary Of The Judgment
The Court of Appeal declared that the Home Secretary violated the Article 4 rights of a Vietnamese boy by releasing him from her custody without putting in place measures to protect him from his traffickers.
- The protection duty is triggered where it is demonstrated that the State authorities are aware, or ought to be aware, of circumstances giving rise to a credible suspicion that an individual has been, or is at real and immediate risk of being, trafficked.
- Any past victims of trafficking should be regarded as potential victims of re-trafficking. In practice, the Home Secretary will need to assess the risk of the individual being re-trafficked.
- Membership of a class of person which is frequently trafficked is sufficient by itself to give rise to a credible suspicion for the purpose of the protection duty under Article 4.
Additionally, the Court also said: “The ‘reasonable grounds’ test to be applied by the Competent Authority is substantially equivalent to the ‘credible suspicion’ threshold under Article 4. But it does not follow that that threshold may not, on the facts of a particular case, have been crossed before the case comes before the Competent Authority – that is, at the earlier stage when a member of the Home Office front-line staff decides to refer.”
“Indeed, that will be so in most cases where a positive reasonable grounds decision is subsequently made: if the case crossed the credible suspicion threshold when considered by the Competent Authority it will have also done so at the point when it was referred.”
“A Sorry Story”
The Court of Appeal found that the Home Office’s conduct towards the Appellant represented “a sorry story” and that its response to the evidence that the Appellant was a child was “reprehensible”.
Helen Johnson, Head of Children’s Services at the Refugee Council says: “The current procedure for recognising child trafficking victims is bureaucratic and cumbersome. Provisions to ensure those who are suspected of being child victims of trafficking are properly protected whilst further information about them is gathered are often not adhered to.”
“By the time the authorities decide to act the child has often been placed in unsafe and inappropriate situations such as adult detention centres or prisons or gone missing from care and been found and re-trafficked by their exploiters. Whenever there's a suspicion that a child has been trafficked effective safeguards need to be put in place immediately to protect them. Children's safety, not red tape, must always come first.”
Silvia Nicolaou Garcia, the solicitor from Simpson Millar LLP who acted for the appellant comments: “We welcome the Court of Appeal’s judgment in favour of the Appellant. Protective measures should be in place for the appellant and others like him, so they do not fall prey to the hands of their traffickers. We hope this judgment will lead to greater protection for victims of trafficking.”
The Appellant was represented in the Court of Appeal by Chris Buttler of Matrix Chambers, instructed by the Public Law Team at Simpson Millar. The Equality and Human Rights Commission intervened in the case.
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