TDT, R (On the Application Of) v Secretary Of State For The Home Department

Factual and Procedural Background

The Claimant, a national of Vietnam with disputed age, was found by police in the back of a lorry in Kent alongside other males from various countries. He was detained at an immigration removal centre and assessed as an adult based on physical appearance, despite his claim to be under 18. Concerns about potential trafficking were raised late in the detention process, with a trafficking advisor certifying as litigation friend and making a formal referral to the UK Human Trafficking Centre. The Claimant was released from detention by the Defendant on 6 November 2015 without safeguarding measures in place, despite requests from the Claimant's representatives for protective steps and a delay to allow for urgent legal applications. The Claimant subsequently disappeared and is believed to have been re-trafficked. Judicial Review proceedings were initiated challenging the Defendant's decision to release the Claimant without protection, alleging breach of positive duties under Article 4 of the European Convention on Human Rights and related trafficking conventions. The Equality and Human Rights Commission was granted permission to intervene, focusing on the wider systemic issues of State obligations to trafficking victims, particularly children. The Local Authority and the Police were initially joined as interested parties but later ceased to be so.

Legal Issues Presented

1. Whether the Claimant's circumstances gave rise to an operational duty under Article 4 to protect him from trafficking or re-trafficking.
2. Whether the Defendant knew or ought to have known of circumstances giving rise to a credible suspicion that the Claimant had been trafficked and was at real and immediate risk of re-trafficking.
3. Whether the steps taken by the Defendant to protect the Claimant were reasonable.
4. Whether the Defendant was in breach of her positive obligations under Article 4 of the European Convention on Human Rights.

Arguments of the Parties

Appellant's Arguments

• The Defendant breached her operational duty under Article 4 by releasing the Claimant without safeguarding measures despite credible grounds to suspect he was a victim of trafficking.
• The breach reflects a wider systemic failure to protect victims and potential victims of trafficking, especially children.
• Evidence supports that the Claimant was under 18, a victim of trafficking, and at real and immediate risk of re-trafficking.
• The Defendant failed to comply with her positive obligations under Article 4.

Intervener's Arguments (Equality and Human Rights Commission)

• The case evidences a broader failure in the system to adequately protect trafficking victims.
• Current policy and guidance are inadequate to identify risks and provide sufficient protective measures.
• The Directive 2011/36/EU has not been fully implemented, and there are no independent child trafficking advocates or clear "relevant functions" under the Modern Slavery Act 2015.

Defendant's Arguments

• The decision to release the Claimant on 6 November was lawful as there was no evidence of real and immediate risk of trafficking or re-trafficking at that time.
• The claim is academic since the Claimant was released and subsequently disappeared.
• The general prevalence of trafficking among Vietnamese nationals does not amount to credible suspicion in this individual case.
• The Defendant denies any systemic failure and contends that the operational duty was fulfilled.
• The Claimant and Intervener do not have leave to challenge the entire system of dealing with trafficking victims in this claim.

Table of Precedents Cited

Court's Reasoning and Analysis

The court applied the test from Rantsev, requiring demonstration that the State authorities knew or ought to have known of circumstances giving rise to a credible suspicion that the Claimant had been trafficked or was at real and immediate risk of re-trafficking. The court found that the mere fact of the Claimant's Vietnamese nationality, age around 18, and presence with other Vietnamese nationals in a lorry was insufficient to establish credible suspicion. Although some of the other Vietnamese males had disappeared, one had returned, and disappearance alone did not necessarily indicate trafficking. The Claimant's disputed age was assessed by immigration officials in line with guidance and was not found to be unreasonable. Applying the Rabone test for real and immediate risk, the court held that the evidence relied upon was primarily based on nationality and age without additional sufficient grounds to establish a substantial present and continuing risk of re-trafficking. While acknowledging the serious positive obligations under Article 4, the court concluded that the Defendant had fulfilled her operational duties in this case. However, the court noted that the release on 6 November should not have occurred without allowing the Claimant's representatives a reasonable opportunity to seek urgent legal relief. Ultimately, the claim for judicial review failed for lack of established breach.

Holding and Implications

The court's final decision is that the claim for judicial review fails.

The Defendant was not in breach of her positive obligations under Article 4 in releasing the Claimant on 6 November 2015 without safeguarding measures, as there was no credible suspicion or real and immediate risk established. The decision does not find a systemic failure in the Defendant's duties. The direct consequence is that no remedy is granted to the Claimant. No new legal precedent was set by this decision, and the ruling is confined to the specific facts of this case.