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

The duty under articles 11(2) and 11(5) of the Directive 2011/36/EU requires necessary assistance and support addressing a potential trafficking victim’s objectively assessed overall welfare needs. It requires appropriate and safe accommodation, material assistance, necessary medical treatment including psychological assistance, counselling and information, and appropriate translation and interpretation.

The duty neither prescribes assessment or treatment by trafficking specialists nor requires trafficking-specific support or the achievement of recovery. A state may lawfully use different support arrangements inside and outside immigration detention. Compliance is assessed by considering the assistance provided throughout the identification process, not only during the formal reflection period.

The appellant, a Nigerian national detained at an immigration removal centre, received a positive reasonable-grounds decision identifying her as a potential victim of trafficking. She remained detained during the ensuing 45-day reflection and recovery period and received healthcare and psychological support through the detention estate.

Haddon-Cave J refused her challenges to detention and temporary admission. Underhill LJ subsequently granted permission in part and directed that the judicial review be heard in the Court of Appeal. The issues were the nature and scope of the support duty arising under articles 11(2) and 11(5) of the Directive 2011/36/EU and the Home Office guidance, and whether that duty had been discharged while the appellant was detained.

1. The appeal was dismissed. The state had discharged its obligations under articles 11(2) and 11(5) of the Directive 2011/36/EU.

2. The support duty requires mechanisms offering at least a subsistence standard of living through appropriate and safe accommodation, material assistance, necessary medical treatment including psychological assistance, counselling and information, and translation and interpretation where appropriate. Medical treatment and psychological assistance must respond to each potential victim’s objectively assessed welfare needs.

3. Neither the Directive, the Home Office guidance nor the Council of Europe Convention on Action Against Trafficking in Human Beings requires assessment or treatment by trafficking specialists. Support need not be directed separately to the consequences of trafficking instead of the individual’s overall psychological needs. The duty is to provide support; it does not guarantee physical, psychological or social recovery.

4. The state may lawfully provide support differently to detained and non-detained potential victims. The specialist community arrangements operated through the Salvation Army did not establish a legal requirement to replicate that model within immigration removal centres. Different or better community provision does not itself establish a breach.

5. Compliance may be assessed by considering assistance and support provided throughout the identification process, rather than only during the 45-day reflection period. The appellant received continuing treatment for psychological difficulties before, during and after that period. Her needs were addressed globally, and the absence of trafficking-specific therapy did not render the treatment legally deficient.

6. The case was unsuitable for determining a systemic challenge because there was no evidence about the numbers or experiences of other detained potential victims and no evidence from charities or non-governmental organisations directed to the operation of the system generally. In any event, no wider issue arose once the court found no breach in the appellant’s case.

Sharp LJ and Arden LJ agreed with Peter Jackson LJ.

1. Court of Appeal (Civil Division): By [2018] EWCA Civ 1070, unanimously dismissed the judicial review application and held that the support duty had been discharged.
2. Administrative Court: Haddon-Cave J refused the appellant’s challenges to her detention and to the refusal of temporary admission. Underhill LJ later granted permission in part and directed that the judicial review be heard in the Court of Appeal.