The claimant, a Vietnamese national, entered the United Kingdom in a group transported in a lorry. The immigration authorities assessed him as an adult and he was detained with a view to his being returned to Vietnam, although he maintained that he was 15. Shortly afterwards he was assessed by the trafficked boys’ adviser at the Refugee Council who concluded that he was a child who had been trafficked. A pre-action protocol letter to the Home Office, written by solicitors on the claimant’s behalf, requested that the claimant be released from detention into safe and secure accommodation provided by the local authority to avoid him being re-trafficked. The Home Office released the claimant without any safety measures being put in place, and the claimant disappeared. With the adviser from the Refugee Council acting as his litigation friend, the claimant sought judicial review of the decision to release him without putting in place any measures to protect him against being re-trafficked, contending that the decision was a breach of his right not to be held in slavery or servitude, guaranteed by article 4 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The European Court of Human Rights had held that article 4 of the Human Rights Convention imposed on states a number of duties as regards human trafficking, in particular a duty to protect individual victims of trafficking (“the protection duty”), which duty was triggered where it was 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 (“the credible suspicion threshold”). The judge dismissed the claim, finding that the circumstances relied on by the claimant did not meet the credible suspicion threshold.
On the appeal—
Held, appeal allowed. First, the phrase “credible suspicion”, for the purposes of the protection duty under article 4 of the Human Rights Convention, represented a relatively low threshold. The European court had drawn a distinction between mere allegations and those with sufficient foundation to call for the taking of protective measures, and had regarded the threshold as having been crossed in a case where the putative victim’s account of having been trafficked was “not inherently implausible”. Secondly, where a person had been trafficked in the past but there was no credible suspicion that they were any longer at “real and immediate risk” of being re-trafficked the protection duty would not arise. However, in order to decide whether a past victim was indeed no longer at real and immediate risk of being re-trafficked the authorities would in any event have to conduct a careful assessment of the kind for which the claimant contended. Thirdly, a “real” risk did not connote a likelihood, or fairly high degree of probability; “immediate” did not necessarily mean “imminent”. Rather, the precise application of the “real and immediate risk” test was inevitably sensitive to the particular factual situation under consideration. The essential question was simply whether the material available showed a sufficient risk for protective measures to be needed. Fourthly, one ground for “credible suspicion” might be that an individual fell into a class known to be peculiarly vulnerable to being trafficked. The weight to be given to generic evidence of that kind in any particular case would depend both on the strength of the association alleged and the reliability of the evidence supporting it. In most cases the evidence would be a mixture of generic and specific, and the question would be what its overall effect was when viewed as a whole. In the present case, there was undisputed evidence that there was a high incidence of young Vietnamese males being trafficked into the United Kingdom and that the claimant’s account of how he had been brought into the United Kingdom fitted the pattern of a victim of trafficking. On the facts, the material before the Secretary of State plainly justified a credible suspicion as at the date of the claimant’s release both that he had been a victim of trafficking and also that he had been at risk of being re-trafficked. Accordingly, there would be a declaration that the Secretary of State had acted in breach of her duty under article 4 of the Convention and thus section 6 of the Human Rights Act 1998 by releasing the claimant without having put in place adequate measures to protect him from being re-trafficked (paras 35, 38, 40–41, 45–46, 47, 77–78, 86, 89, 90).
Guidance as to the inter-relationship between the state’s obligations, so far as concerns the protection of potential victims of trafficking, under article 4 of the Human Rights Convention and under the Council of Europe Convention on Action against Trafficking in Human Beings (2005) (Cm 7465) and Parliament and Council Directive 2011/36/EU (paras 31–36, 89, 90).
Christopher Buttler (instructed by Simpson Millar llp) for the claimant.
Gwion Lewis (instructed by Treasury Solicitor) for the Secretary of State.
Helen Mountfield QC (instructed by Equality and Human Rights Commission) for the intervener.