TDT, R (On the Application Of) v The Secretary of State for the Home Department (Rev 1)

The operational protection duty under article 4 of the ECHR arises where state authorities know, or ought to know, facts giving rise to a credible suspicion that an identified person has been trafficked or faces a real and immediate risk of trafficking. The threshold is relatively low. It requires more than a bare allegation, but not proof or a high probability.

Generic evidence about a class vulnerable to trafficking may be material. It must be assessed with the individual circumstances as a whole. A past trafficking history will ordinarily indicate a present risk of re-trafficking, although the protection duty is directed to a real and immediate future risk. Once the duty arises, authorities must take reasonable protective measures within their powers.

The appellant, a young Vietnamese man found entering the United Kingdom in a lorry, was detained by the Home Office. His solicitors and a trafficking adviser informed the Home Office that he was a child and a potential victim of trafficking. They supplied an account of his journey and sought release only into safe accommodation with protective arrangements.

Although a referral had been made under the National Referral Mechanism, the appellant was released without those arrangements on 6 November 2015. He disappeared immediately and was believed to have been re-trafficked. A later reasonable-grounds decision accepted that there were grounds to believe he was a victim of trafficking.

McGowan J dismissed his judicial-review claim. The appeal concerned whether releasing him without protective measures breached the article 4 ECHR operational protection duty.

1. Appeal allowed. The Secretary of State breached article 4 of the ECHR by releasing the appellant without adequate measures to protect him from re-trafficking. A declaration was granted. The breach was also contrary to section 6 of the Human Rights Act 1998.

2. The article 4 protection duty, derived from Rantsev v Cyprus and Russia (2010) 51 EHRR 1, is distinct from the National Referral Mechanism and its guidance. The duty is triggered when the authorities know, or ought to know, circumstances creating a credible suspicion that an identified individual has been trafficked or is at real and immediate risk of trafficking. The domestic reasonable-grounds threshold is substantially the same as that credible-suspicion threshold, but the duty may arise before a Competent Authority makes its decision.

3. Credible suspicion is a relatively low threshold. It distinguishes unsupported allegations from material with a sufficient foundation to require protective action. A real risk need not be likely or statistically quantifiable. An immediate risk is present and continuing, rather than merely a risk that may arise at some future time. The evidence must be assessed as a whole, including both the individual account and reliable generic evidence about a vulnerable class.

4. The material available to the Home Office plainly met that threshold. It included a detailed and consistent trafficking account, features matching the known trafficking of young Vietnamese males, specialist evidence, the referral under the National Referral Mechanism, and material showing the high risk of re-trafficking following release. Further individual evidence of continuing contact with traffickers was unnecessary. The protective arrangements sought, including safe accommodation which the local authority had agreed to provide, would not have imposed a disproportionate burden.

5. The court declined to make final mandatory orders governing what the Secretary of State should do if the appellant were found in the future. There was no basis to assume a future unlawful removal, and future circumstances were unpredictable. The court nevertheless expected prompt notification to the appellant's solicitors, or that he be enabled to contact them, absent good reason to the contrary.

• Court of Appeal (Civil Division): Allowed the appeal and declared that the Secretary of State had breached article 4 of the ECHR and section 6 of the Human Rights Act 1998 by releasing the appellant without adequate protective measures: [2018] EWCA Civ 1395.
• High Court, Queen's Bench Division, Administrative Court (McGowan J): Dismissed the judicial-review claim, holding that the credible-suspicion threshold had not been met. The citation is not stated in the judgment.