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

Article 4 of the European Convention on Human Rights requires operational measures where authorities knew, or ought to have known, of circumstances giving rise to a credible suspicion that an identified person had been trafficked or faced a real and immediate risk of trafficking or re-trafficking. The risk must be substantial or significant, present and continuing, rather than remote, fanciful or merely future. General evidence of trafficking prevalence, nationality, age, association with others, or disappearance will not necessarily establish the required individualised suspicion or risk. Article 4 also requires proper systems for identifying and protecting victims, although a possible systemic failure need not be determined where no individual operational breach is established.

The claimant, a Vietnamese national whose age was disputed, challenged the Secretary of State’s decision to release him from immigration detention without safeguarding measures. He alleged breaches of the positive obligations under Article 4 of the European Convention on Human Rights and the Anti-Trafficking Convention, on the basis that there were credible grounds to suspect that he was a child victim of trafficking and that he faced a real and immediate risk of re-trafficking.

He disappeared after release. The central issues were whether the operational duty under Article 4 had arisen, whether the evidence established the necessary individualised suspicion and risk, and whether the claim also raised a wider systemic failure.

1. Claim dismissed. The release of the claimant was not unlawful and no operational breach of Article 4 was established.
2. Applying Rantsev v Cyprus and Russia (2010) 51 EHRR 1, an operational duty arises where the authorities knew, or ought to have known, of circumstances giving rise to a credible suspicion that an identified individual had been trafficked or was at real and immediate risk of being trafficked or exploited. The duty requires reasonable protective measures within the authorities’ powers.
3. The phrase “real and immediate” required a substantial or significant risk which was present and continuing at the relevant time. It excluded a remote, fanciful or merely future risk. The approach in Rabone v Pennine HHS Foundation Trust [2012] UKSC 2 was applied.
4. The claimant’s Vietnamese nationality, disputed age, presence in a lorry with other Vietnamese nationals and the disappearance of some of those nationals did not, without sufficient additional individualised material, establish a credible suspicion of trafficking or a real and immediate risk of re-trafficking. The conflicting evidence about age did not make the assessment demonstrably unreasonable.
5. Article 4 imposes wider positive duties, including the implementation and enforcement of proper systems for identifying and protecting trafficking victims. The court considered that a general failure could, if necessary, amount to a breach in an individual case, but that issue was not determined because no specific operational failure was proved.
6. Although the claim failed, the claimant should not have been released until his representatives had been given an opportunity to seek an urgent injunction. That criticism did not establish an Article 4 breach on the facts.