Secretary of State for the Home Department v Minh

The procedural obligation under article 4 of the European Convention on Human Rights arises only where there is a credible suspicion of trafficking. It requires an effective investigation capable of identifying and punishing persons responsible for offences within the state's jurisdiction. It is an obligation of means, not result.

The administrative process for identifying and supporting potential trafficking victims under the Council of Europe Convention on Action Against Trafficking in Human Beings serves different purposes. A failure to apply that process correctly does not, without more, breach article 4. The Convention does not require a state to investigate trafficking offences committed in another jurisdiction, although it must cooperate effectively with the relevant foreign authorities.

The respondent challenged a Home Office Competent Authority decision that there were no reasonable grounds to believe he had been trafficked. The Administrative Court quashed that decision for failures to apply the Secretary of State's guidance and remitted it for reconsideration: [2015] EWHC 1725 (Admin). It also declared that the defective decision-making breached the investigative obligation under article 4 of the European Convention on Human Rights.

The Secretary of State did not appeal against the quashing or remittal. The sole issue was whether failure to apply the trafficking guidance could establish a breach of article 4, particularly where no lawful administrative decision or judicial finding had established a credible suspicion of trafficking.

1. Appeal allowed. The declaration that the Competent Authority had breached article 4 of the European Convention on Human Rights was set aside. The unchallenged order quashing and remitting the reasonable-grounds decision remained undisturbed.

2. The procedural obligation under article 4 arises when the authorities have a credible suspicion that a person has been trafficked. A mere allegation or suspicion is insufficient. Once engaged, the obligation requires a prompt and reasonably expeditious investigation capable of identifying and punishing those responsible. It is an obligation of means rather than result: paras [25]–[26], [36].

3. The obligation principally concerns trafficking offences committed within the state's jurisdiction. Article 4 does not require the United Kingdom to investigate trafficking or forced labour occurring within another state's jurisdiction. In a cross-border case, the United Kingdom's duty concerning events abroad is to cooperate effectively with the relevant foreign authorities: paras [27]–[29], [40].

4. The procedures established under the Council of Europe Convention on Action Against Trafficking in Human Beings and the Secretary of State's guidance serve a different purpose. The Competent Authority decides whether a person should receive humanitarian support, a recovery period and favourable interim immigration treatment. It does not have constitutional responsibility for investigating crime, identifying offenders or conducting prosecutions. The guidance is therefore not the mechanism by which the United Kingdom discharges the investigative obligation under article 4: paras [30]–[35], [38].

5. A failure to apply the guidance correctly cannot, without more, establish an article 4 violation. The reasonable-grounds threshold used by the Competent Authority was, for practical purposes, equivalent to the credible-suspicion threshold. The Administrative Court had quashed the decision without itself finding that this threshold was met. It remained possible that a lawful reconsideration would find no reasonable grounds. In those circumstances, the question whether an article 4 investigation was inadequate had not arisen: paras [36]–[37], [41]–[42].

6. Ordinarily, any alleged breach must be assessed by reference to the overall response of the relevant public authorities, particularly the police and prosecuting authorities. A failure by the Competent Authority might exceptionally contribute to a violation, for example if it failed to notify the police after a positive decision and the potential victim was removed before a domestic offence could be investigated: para [39].

• Court of Appeal (Civil Division): The Secretary of State's appeal was allowed and the declaration of a breach of article 4 of the European Convention on Human Rights was set aside: [2016] EWCA Civ 565. The order quashing and remitting the Competent Authority's decision was not challenged.
• Administrative Court: Helen Mountfield QC, sitting as a Deputy High Court Judge, quashed the Competent Authority's reasonable-grounds decision for failures to apply the relevant guidance and remitted it for reconsideration. She also declared that the defective process breached article 4: [2015] EWHC 1725 (Admin).