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

Factual and Procedural Background

This appeal concerns the treatment by the Home Office of a young Vietnamese man, the Appellant, who was found in the back of a lorry in Kent with other young men on 8 September 2015. The Home Office initially detained him on the basis that he was over 18, with plans to return him to Vietnam. After initial representation by one firm, the Appellant was later represented by solicitors from Maxwell Gillott ("MG"). MG, based on their client’s account and appearance, suspected he was under 18 and a victim of trafficking, and communicated this to the Home Office alongside a letter seeking his release with protective measures.

The Appellant was referred to the Competent Authority under the National Referral Mechanism ("NRM") as a potential victim of trafficking. Despite the local authority's agreement to provide safe accommodation, the Home Office did not respond to MG's letter. Judicial review proceedings were issued on 6 November 2015, and the same day the Appellant was released on condition of residing at an address in south London, which was later discovered to be a Buddhist temple rather than a residential address. The Appellant disappeared immediately after release, and it is believed he was re-trafficked.

Permission to apply for judicial review was granted on a single ground: that releasing the Appellant without protective measures breached his rights under Article 4 of the European Convention on Human Rights ("ECHR"). The claim was dismissed by McGowan J on 29 July 2016. The Appellant appeals with permission granted in April 2017. The proceedings continue despite the Appellant’s disappearance and his now being over 18, with the Court accepting that instructions given at the outset remain valid.

Legal Issues Presented

1. Whether the Home Office had a positive obligation under Article 4 ECHR to take operational measures to protect the Appellant from being re-trafficked upon release.
2. Whether, at the time of release, there were reasonable grounds or a credible suspicion that the Appellant was a victim of trafficking and at real and immediate risk of re-trafficking.
3. The proper interpretation and application of the "credible suspicion" threshold in relation to the protection duty under Article 4.
4. The extent to which generic evidence about trafficking risks for young Vietnamese males can satisfy the credible suspicion threshold for an individual.
5. The implications of the Appellant’s disputed age on the protection duty and the adequacy of protective measures.

Arguments of the Parties

Appellant's Arguments

• The Secretary of State was or should have been aware of material giving rise to a credible suspicion that the Appellant was a victim of trafficking and at real and immediate risk of re-trafficking if released.
• The Home Office breached its positive obligation under Article 4 by releasing the Appellant without protective measures, which could have included safe accommodation arranged with the local authority and multi-agency involvement.
• The Appellant’s account, the referral to the Competent Authority, and the evidence from experts and advisers demonstrated a pattern consistent with trafficking of young Vietnamese males, including the use of a trafficking route via Russia and the existence of a "debt" contract.
• Statistical and qualitative evidence showed a high incidence of re-trafficking and going missing among young Vietnamese males released from detention.
• The credible suspicion threshold is a relatively low standard, requiring only reasonable grounds for suspicion, not proof.
• Even if the Appellant was over 18, protective duties still applied, though the form of protective measures may differ.

Secretary of State's Arguments

• The material before the Home Office did not meet the credible suspicion threshold to trigger the protection duty under Article 4.
• While there was a known problem of trafficking among young Vietnamese males, not all such individuals are victims; some are economic migrants without trafficking involvement.
• There was no sufficient individualised evidence to suspect that the Appellant specifically was a victim of trafficking or at real and immediate risk of re-trafficking.
• The failure to respond to MG's pre-action letter and the procedural mishandling leading to the Appellant’s release without protective measures were administrative errors but distinct from a breach of the Article 4 protection duty.
• The burden imposed by the protection duty must be proportionate and not impose an unduly onerous obligation on the Home Office.
• The Appellant’s disputed age was not central; the protective duty could apply regardless of whether he was a child or adult.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court undertook a detailed analysis of the legal framework governing the protection of trafficking victims, focusing on the positive obligations under Article 4 of the ECHR as elucidated in Rantsev and subsequent Strasbourg jurisprudence. It emphasized the "credible suspicion" threshold, a relatively low standard requiring reasonable grounds to suspect trafficking or a real and immediate risk of re-trafficking.

The Court distinguished the obligations of frontline staff to refer potential victims to the Competent Authority under the National Referral Mechanism ("NRM")—which requires only a very low threshold of suspicion—from the higher but still relatively low threshold triggering the protection duty under Article 4.

In applying these principles to the facts, the Court found that the material before the Home Office at the time of the Appellant’s release was sufficient to create a credible suspicion that he was a victim of trafficking and at real and immediate risk of re-trafficking. This conclusion was supported by expert evidence, the Appellant’s personal account fitting known trafficking patterns (including transit via Russia and the existence of a "debt" contract), and the high incidence of trafficking and re-trafficking among young Vietnamese males documented in various reports and witness statements.

The Court also took into account that the Competent Authority itself, a branch of the Home Office, later accepted there were reasonable grounds to believe the Appellant was a victim of trafficking, reinforcing that the credible suspicion threshold had been crossed before release.

It found that the Home Office failed to take appropriate operational measures to protect the Appellant upon release, despite specific proposals made in MG’s pre-action letter and the local authority’s willingness to provide safe accommodation. The Court noted serious administrative failings, including the absence of a Merton-compliant age assessment, lack of substantive consideration of the representations made, and disregard for protective arrangements requested.

The Court rejected the Secretary of State’s argument that generic evidence of trafficking risk was insufficient without specific individualised evidence, holding that membership of a vulnerable class combined with credible individual indicators sufficed to meet the threshold. It also rejected arguments about proportionality to the extent that reasonable protective measures were available and not unduly burdensome.

Finally, the Court acknowledged that while the Appellant’s age was disputed, the protection duty under Article 4 applied regardless of whether he was a child or adult, though heightened duties exist for children.

Holding and Implications

The Court allowed the appeal. It declared that the Secretary of State acted in breach of her duty under Article 4 of the ECHR and section 6 of the Human Rights Act 1998 by releasing the Appellant without adequate protective measures against re-trafficking.

The direct effect is a formal recognition that the Home Office failed to discharge its positive obligations to protect a potential victim of trafficking. The Court declined to make specific mandatory orders concerning future conduct related to the Appellant, noting the unpredictability of circumstances and that the Secretary of State would be aware of the ruling’s implications. No new precedent was set beyond clarifying the application of existing obligations in this context.

The Court expressed hope that the Secretary of State would consider whether broader lessons could be learned from the case to improve handling of potential trafficking victims.