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Young victims of trafficking must be protected from being re-trafficked

R (on the application of TDT (By his litigation friend Tara Topteagarden) (Appellant) v Secretary of State for the Home Department (Respondent) and Equality & Human Rights Commission (Intervener) [2018] EWCA Civ 1395

The Court of Appeal (Civil Division) has ruled that the Secretary of State for the Home Department breached article 4 of the ECHR and the European Convention on Action against Trafficking in Human Beings 2005 by releasing a Vietnamese boy, who was a potential victim of trafficking, from administrative detention without having put in place measures to protect him from being re-trafficked.

Details

T, a Vietnamese boy, was discovered trying to enter the UK in a lorry with several other Vietnamese nationals. He was detained at an immigration removal centre. He claimed to be 15 but was thought to be over 18.

T’s solicitor wrote to the Home Office alerting them to her intention to bring proceedings for judicial review in respect of the failure to treat T as a child and his continued detention. T’s advisor at the Refugee Council made a referral to the National Referral Mechanism (NRM). T’s solicitor issued a pre-action protocol letter seeking T’s release with stringent safeguarding measures in place. The letter highlighted that he was a potential victim of trafficking and at risk of being re-trafficked. A week later, judicial review proceedings were issued. T was released on the same day, despite his solicitor writing that day that he should not be released without the safeguarding measures in place. T disappeared and had not been found since.

T’s solicitor brought proceedings, claiming that the secretary of state had breached her duty under ECHR art.4 and the European Convention on Action against Trafficking in Human Beings 2005 by failing to take reasonable steps to protect T in circumstances where she knew, or ought to have known, that there was a credible suspicion that he was a trafficking victim at risk of being re-trafficked.

Applying the tests in Rantsev v Cyprus (25965/04) (2010) 51 E.H.R.R. 1 and Rabone v Pennine Care NHS Foundation Trust [2012] UKSC 2, [2012] 2 A.C. 72, the judge found that the facts before the secretary of state were not enough to give rise to a credible suspicion, and that there had to be something more to prove that there was a substantial or significant risk of re-trafficking which was present and continuing.

On appeal in was held:

• The material before the Secretary of State plainly justified a credible suspicion that the Appellant was a victim of trafficking and also that he was at risk of being re-trafficked if proper protective measures were not taken.
• There is abundant evidence, and it is undisputed, that there is a high incidence of young Vietnamese males being trafficked to the UK.
• The available material had gone beyond the ‘something more’ required by the judge: T’s account of how he had been brought to the UK fitted the pattern of a trafficking victim and a referral to the national referral mechanism (NRM) had been made on the same basis.

‘The essential criticism in this case, namely that if the Appellant was a potential victim of trafficking he should not have been released without proper protection against the risk of being re-trafficked, is equally valid even if he was 18… having said that, there are heightened duties for children who are victims, or potential victims, of trafficking…I regard it as reprehensible that once MG (T’s solicitor) had put the Appellant’s age squarely in issue 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.’ (paragraphs 84 – 85).

Commentary

This case is relevant for criminal practitioners representing young victims of trafficking who are at risk of being re-trafficked or exploited. It clarifies the duties of the state to safeguard these children and young people and it is arguable that young defendants in similar positions are entitled to the same protections. For example, children who have been exploited by county lines gangs should not be released from the police station or criminal courts without safeguards against their re-exploitation.