The Article 4 Operational Duty for Victims of Human Trafficking. Case Comment: R (on the application of TDT, by his Litigation Friend Tara Topteagarden) v The Secretary of State for the Home Department [2018] EWCA Civ 1395

5 Oct 2018

Background

In the context of human trafficking, Article 4 of the European Convention of Human Rights (ECHR) imposes an “operational duty” to take positive steps to protect potential individual victims from being trafficked or exploited.

A breach of the operational duty under Article 4 arises in the same way as it does under Articles 2 and 3 of the ECHR, in accordance with the principles of Osman and Rabone; where the State authorities fail to take reasonable steps to prevent an individual being trafficked in circumstances when they “were aware or ought to have known” of a “real and immediate risk”.

The emergence of an operational duty under Article 4 has been heralded as a milestone in ensuring the protection of potential victims of trafficking. However, in practice, determining whether a State “knew or ought to have known” of a real and immediate risk of an individual being trafficked (what is referred to as the ‘credible suspicion’ threshold) requires careful consideration.

Judgment

The case of TDT challenged the failures of the Home Office to prevent a young boy who was suspected of having previously been trafficked from Vietnam from being re-trafficked when released from detention.

TDT was a young Vietnamese man of disputed age who was found by police with fifteen other young men and boys in the back of a lorry in September 2015. The immigration authorities determined that he was over 18 and he was detained with a view to removal. TDT’s representatives had written to the Home Office to inform them that his account, physical appearance and demeanour indicated that he was under the age of 18, and had been a victim of trafficking. A referral was made under the National Referral Mechanism and his representatives sought to challenge his continued detention and the failure of the Home Office to treat him as a child.

In asking that TDT be released from detention, his representatives explained that he was at serious risk of being re-trafficked if released without any safeguards. His representatives asked that, among other things, the Home Office release him into secure accommodation which had been agreed with the local council. The Home Office released TDT from detention without the recommended safeguards, and he disappeared immediately, suspected to have fallen back into the hands of his traffickers.

Exceptionally, the Secretary of State did not lodge a witness statement within these proceedings. Submissions were made that, on the basis of the (uncontested) evidence put forward by the Appellant as to information regarding risk of being re-trafficked, the credible suspicion threshold had not been crossed. This was rejected by the Court, and it was held that there had been a breach of Article 4 in failing to take reasonable steps to protect against the risk of TDT being re-trafficked.

Commentary

In arguing that the credible suspicion threshold had been met, as well as information relating specifically to TDT, the Appellant relied on a wealth of information to demonstrate what was described as a “known problem” of child victims returning to the control of their traffickers when released into care. This was particularly acute in cases of young Vietnamese children. It was also the case that two other Vietnamese males who had been detained alongside TDT when encountered in September 2015 had both gone missing upon release. On any view, the information was comprehensive and illuminating.

It was argued by the Secretary of State, that whilst there was a plethora of evidence relating to a generic risk, it was not sufficient to show that TDT would fall into that pattern. There would need to be “specific” evidence of a risk of re-trafficking (for example, evidence that TDT was still in contact with his traffickers). The Court rejected the need for “specific evidence”, in the face of abundant evidence of risk for individuals with a particular set of characteristics and what was already known about TDT.

This is a welcomed judgment in that it encourages a common sense approach to risk assessment and does not raise the threshold of credible suspicion so high as to render the protections afforded in Article 4 merely theoretical or academic. It remains to be seen how straightforward it will be to mount an argument that the credible suspicion threshold has been met in other cases where there is less comprehensive objective evidence of particular patterns of risk. What was clear throughout the reasoning in the judgment is that the fact (or suspicion) that an individual has been trafficked previously does not on its own suffice in meeting the threshold. The assessment is likely to be highly fact sensitive based on both objective and specific information about future risk.

In the context of human rights obligations, there is always a necessary balance to be struck between providing effective protection and not placing onerous burdens on the State. This in part arises from an acknowledgment that each State has different resources and there is a need to set “attainable targets”.  However the judgment was clear that the provision of secure accommodation should not be resisted on the basis of this principle, and would not have been too large a burden for the Respondent.

Angelina Nicolaou