Ensuring victims of trafficking are protected

The Court of Appeal considered the threshold at which the duty to protect trafficked persons under Article 4 of the European Convention on Human Rights (the protection duty) comes into play and what that obligation entails.

TDT, a young Vietnamese male, told police he was a child when they found him on the back of a lorry with other immigrants. His solicitors wrote to the Home Office asking for his release from immigration detention on grounds that he was a suspected child victim of trafficking and for steps to be put in place to protect him from re-trafficking. Refugee Council referred his case to the National Referral Mechanism for Trafficking to make a decision as to whether he had been trafficked. Meanwhile, a HO official released him to a Vietnamese Buddhist Centre without checking it was suitable for his protection. He disappeared – possibly due to (re)trafficking. A week later, HO made an initial decision that he appeared to be a victim of trafficking.

In his absence, TDT’s litigation friend brought a legal case arguing that HO had breached the Article 4 protection duty by releasing him from their custody without putting in place measures to protect him from the risk of being trafficked.

This case came within our core aim – upholding the system of equality and human rights protections. 

We intervened using our powers under section 30 of the Equality Act 2006.

The Court of Appeal ruled that the Secretary of State acted in breach of her protection duty under Article 4 of the ECHR  by releasing TDT without having put in place adequate measures to protect him from being trafficked.

The judgment helps victims of trafficking by clarifying the threshold at which the duty to protect trafficked persons under article 4 of the European Convention on Human Rights comes into play and by setting out what that obligation involves. The court ruled that the protection duty is triggered when 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. The court decided that credible suspicion means ‘not inherently implausible’ and therefore the threshold for the protection duty to be engaged is a ‘relatively low’ one.

The court found that membership of a ‘class of person’ who are frequently trafficked may be sufficient grounds to trigger the protection duty. It confirmed that enhanced protections apply to children who are potential victims of trafficking. The court also observed the close link between being a past and future victim of trafficking and the need for the Home Office and other state authorities to take this into account when deciding whether a past victim of trafficking is likely to be at risk of being re-trafficked and therefore should be be given protection. The court urged HO to give careful consideration to whether any general lessons could be learnt from this case in regard to how to handle potential victims of trafficking in future.