Haile, R (on the application of) v Secretary of State for the Home Department

Article 4 of the European Convention on Human Rights requires the authorities to initiate a prompt and effective investigation once credible suspicions of trafficking arise. The duty does not arise merely because a person later receives a positive trafficking decision. The court must assess when the relevant indicators became apparent, without hindsight.

Claims based on historic failures to identify or protect a trafficking victim must be pleaded clearly and brought within the applicable time limits. Permission may be refused where substantial delay causes forensic prejudice. A later finding that a person was trafficked does not, by itself, establish that an earlier failure breached Article 4.

The claimant, an Eritrean-born domestic worker, alleged that the Secretary of State had breached Article 4 by failing to identify and support her as a victim of trafficking in 2010, by failing to comply with entry-clearance procedures in 2008, and by failing to report her trafficking allegations to the police.

The Secretary of State later withdrew an adverse reasonable-grounds decision, accepted that there were reasonable grounds to believe the claimant had been trafficked, referred the matter to the police, and ultimately made a positive conclusive-grounds decision. Permission had been granted only for the police-reporting issue. The central questions were whether the additional challenges could be pursued and whether the delay in reporting breached Article 4.

1. 2010 challenge. Permission did not extend to the alleged failure to identify the claimant during her 2010 asylum process. The claim was not clearly pleaded, was brought too late, and there was no continuing obligation requiring the Secretary of State to review the closed asylum file. Permission was therefore refused and that aspect of the claim was dismissed.
2. Even if permission had been granted, the 2010 challenge would have failed on its merits. The evidence did not show that it was obvious at the time that the claimant was a potential trafficking victim. The court declined to assess the earlier events with hindsight after the later positive trafficking decision.
3. 2008 challenge. Permission was refused because the issue was raised over six years late and the Secretary of State was materially prejudiced by the loss of reliable evidence. Even if permission had been granted, there was insufficient evidence that the entry-clearance guidance had been breached or that any breach would necessarily constitute a violation of Article 4.
4. Police reporting issue. The duty to report arose, at the latest, when the reasonable-grounds decision was made in November 2013. The January 2013 decision, made under guidance later held unlawful in R (Atamewan) v Secretary of State for the Home Department [2013] EWHC 2727 (Admin), did not, in the circumstances, trigger the Article 4 duty as understood at the time. The Secretary of State reported the matter on 15 January 2014. That was not an unreasonable or substantial delay, and there was no evidence that the timing rendered the police investigation ineffective. The claimant’s decision not to pursue the allegations brought the investigation to an end.
5. The claim therefore failed in its entirety. The claimant was ordered to pay the defendant’s costs from 21 November 2013, subject to the applicable legal-aid costs assessment, and there was a detailed assessment of the claimant’s legal-aid costs.

First-instance judicial review proceedings in the Administrative Court. Permission had previously been granted only for the police-reporting ground.