Introduction

The case EM, R (on the application of) v. The Secretary of State for the Home Department ([2018] EWCA Civ 1070) was adjudicated by the England and Wales Court of Appeal (Civil Division) on May 15, 2018. The appellant, EM, sought judicial review against the Secretary of State for the Home Department (SSHD), challenging the adequacy of support provided to her as a Potential Victim of Trafficking (PVoT) during her detention at an Immigration Removal Centre (IRC) in 2016.

The crux of the dispute centered on the interpretation and fulfillment of the state's obligations under Directive 2011/36/EU and relevant policy guidance pertaining to human trafficking victims, specifically concerning the provision of assistance and support ('the support duty') to PVoTs who are detained.

Summary of the Judgment

The Court of Appeal dismissed the judicial review application brought forward by EM. The court held that the SSHD had adequately discharged its obligations under Articles 11(2) and (5) of Directive 2011/36/EU and the associated policy guidance. The judgment emphasized that the support duty requires providing necessary assistance and support tailored to the overall needs of each PVoT but does not mandate that such support be delivered by trafficking specialists or focus solely on trafficking-related issues.

The court concluded that the support provided to EM during her detention met both domestic and international legal obligations, thereby rejecting her claims of unlawful treatment and breach of the support duty.

Analysis

Precedents Cited

The judgment references several key precedents that influenced the court’s decision:

• R (Lumba) v SSHD [2012] 1 AC 245: Established that while the Anti-Trafficking Convention is not directly enforceable in UK law, policy measures adopted by the SSHD must adhere to its principles unless there is good reason not to.
• R (Galdikas) v SSHD [2016] 1 WLR 4031: Clarified the obligations under Article 11(2) of the Directive, emphasizing that assistance must be provided based on individual assessments.
• R (Tabbakh) v Staffordshire Probation Trust [2014] 1 WLR 4620: Set the threshold for challenging systems as "inherently unfair" only if there is a systemic failure, not merely isolated instances.
• Lord Chancellor v Detention Action [2015] 1 WLR 5341: Reinforced the high threshold required to deem a system as inherently unfair, emphasizing the need for the courts to assess whether minimum standards of fairness are met.

Legal Reasoning

The court's legal reasoning revolved around the interpretation of the Directive and the accompanying policy guidance. It acknowledged that while the Directive mandates assistance and support for PVoTs, it does not prescribe the specific manner in which this support must be delivered. The SSHD is granted discretion in how to implement these obligations, provided the outcome aligns with the Directive's requirements.

In this case, the court determined that the support provided to EM within the IRC—comprising psychological assessments, medical treatments, counselling, and other support services—satisfied the necessary legal standards. The argument that support must be administered by trafficking specialists or mirror community services was rejected, as the Directive emphasizes the result rather than the method of delivery.

Impact

This judgment has significant implications for the treatment of detained PVoTs in the UK:

• Clarification of Support Duty: Reinforces that the support duty under Directive 2011/36/EU is outcome-based, allowing for flexibility in its implementation across different settings, including detention centers.
• Systemic Flexibility: Affirms the government's discretion in designing support mechanisms, provided they meet the minimum legal standards set by the Directive.
• Detention Policies: Suggests that existing support structures within IRCs are sufficient, negating the necessity for specialized trafficking support services in these facilities.
• Future Litigation: Sets a precedent that challenges to support provisions must demonstrate inherent systemic flaws, not just isolated inadequacies.

Complex Concepts Simplified

Support Duty

The "support duty" refers to the legal obligation of the state to provide necessary assistance and support to individuals identified as Potential Victims of Trafficking. This includes ensuring their physical, psychological, and social recovery through appropriate services.

Potential Victim of Trafficking (PVoT)

A PVoT is an individual who has been identified as a potential victim of human trafficking based on reasonable grounds. This status entitles them to certain protections and support measures under both national and international law.

Reasonable Grounds Decision

This is a determination made by competent authorities when they have reasonable grounds to believe that an individual is a PVoT. A positive decision triggers the provision of specific support services and initiates a reflection and recovery period.

Reflection and Recovery Period

A mandated period (at least 30 days, extended to 45 days in the UK) during which a PVoT cannot be expelled. This period allows the individual time to recover from trafficking experiences and make informed decisions regarding their cooperation with authorities.

Judicial Review

A legal process by which individuals can challenge the lawfulness of decisions or actions taken by public bodies. In this case, EM sought judicial review to contest the SSHD's handling of her support and detention.

Conclusion

The Court of Appeal's decision in EM v SSHD [2018] underscores the principle that while the state must provide essential support to PVoTs, the exact nature and delivery of such support remain within the government's discretion. The judgment reaffirms that meeting the mandated outcomes of the Directive suffices, even if the support mechanisms differ between detained and non-detained individuals. This case sets a clear precedent that challenges to support provisions must demonstrate systemic, inherent unfairness rather than isolated deficiencies, thereby shaping the future landscape of support for trafficking victims within the UK’s legal framework.