Court of Appeal – Human Trafficking

Home Office wrongly detained child victim of trafficking then released with no arrangements or protection from trafficking and risk of other violations despite solicitor intervention. The child immediately disappeared. 

This appeal case brought by the Equality and Human Rights Commission found that the Secretary of State acted in breach of her duty under article 4 of the ECHR and thus section 6 of the 1998 Act.

The victim, a child from Vietnam, was found by police with fifteen other young people or children in the back of a lorry in Kent on 8 September 2015: six of them were also Vietnamese. Immigration authorities took the view that the victim was over 18, and he was detained initially at Dover Immigration Removal Centre and then at Brook House in Sussex, with the aim of returning him to Vietnam as soon as emergency travel documents could be obtained.

The child’s solicitor passed concerns to the Home Office case-worker the same day, and also wrote a short letter intimating an intention to bring proceedings for judicial review in respect of the child’s continued detention and failure to treat the victim as a child. The child’s account indicated that he was a victim of trafficking. Arrangements were made for the child to be seen by a Trafficked Boys’ Adviser at the Refugee Council. He was seen and referred to the Competent Authority under the National Referral Mechanism (“NRM”) for potential victims of trafficking.

A pre-action protocol letter was sent to the Home Office by the child’s litigation friend and challenged various aspects of the child’s treatment, including the failure to conduct an age assessment and to recognise him as a potential victim of trafficking. It gave a full account of the facts showing that he had been trafficked from Vietnam. The letter asked that the child be released from detention, but cautioned that the child should be released into safe and secure accommodation, to be provided by the local authority, West Sussex County Council (WSCC), for assessment and services under sections 17 and 20 of the Children Act 1989; that a multi-agency meeting should be arranged; and that his case should be referred to the Kent police and the Human Trafficking Team of the Metropolitan Police. The letter was also sent to the Kent Police and to WSCC and WSCC promptly agreed to arrange safe accommodation for the child.

However, there was no response from the Home Office, despite a chasing letter sent the following day. Judicial review proceedings were therefore issued in the High Court by the child’s litigation friend. Later the same day the child was granted temporary admission, on condition that he reside at an address in south London. Upon learning from the child of his proposed release, the child’s litigation friend  immediately wrote to the Home Office protesting that he should not be released without the necessary safeguarding arrangements in place. The child was released without any safeguards and has not been seen by anyone from the moment of his release. The child has not been in contact with his litigant friend and police have made enquiries as to his whereabouts but without success. The child’s solicitor believes that he has been re-trafficked.

The law is clear that when the age of the victim is uncertain and there are reasons to believe that the victim is a child, he or she should be presumed to be a child and should be accorded special protection measures pending verification of his/her age.

If the competent authority has reasonable grounds to believe that a person has been a victim of trafficking the law demands that measures are put in place to assist the victim in their physical, psychological and social recovery (irrespective of age). Such assistance should include each party having due account of the victim’s safety and protection needs.

Lord Justice Underhill outlined the essence of the case made on the child’s behalf in this particular case:

    1. The essence of the case made on the Appellant’s behalf is that as at the point of his release on 6 November 2015 the Secretary of State was, or should have been, aware of material which gave rise to a credible suspicion that he had been trafficked, which in the circumstances of his case meant that he was also at real and immediate risk of being (re-)trafficked if released; that she was thus, in accordance with para. 286 of the judgment of the Court in Rantsev, under a positive obligation under article 4 to take operational steps to protect him from falling back into the hands of his traffickers; that that duty could have been discharged by her taking the steps proposed in the letter of 28 October; and that her decision to release the Appellant without taking those steps was therefore a breach of that duty.

And additionally stated:

    1. Although it was initially an important part of the Appellant’s case, which the Judge rejected, that he should have been treated as a minor, it will be apparent that I do not think that that aspect is central to the issue. 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. I accept that if he was in fact an adult the particular form of protective measures argued for by MG, which, as I understand it, depended on the Council treating him as a child, would not have been available. But it was not argued by Mr Lewis that no effective protective measures could have been put in place if he were over 18.

    2. Having said that, there are heightened duties for children who are victims, or potential victims, of trafficking; and the case against the Secretary of State is certainly reinforced by the evidence of Ms Nicolaou Garcia and Ms Topteagarden, unrebutted by any contrary evidence, that the Appellant appeared to them to be clearly still a child. I regard it as reprehensible that once MG 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 – all the more so when the question had been raised in the CRS notes themselves (see para. 71 (4)-(5) above).

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