CP (Vietnam), R (On the Application Of) v Secretary of State for the Home Department

A Competent Authority must investigate a potential trafficking victim fairly and rationally. Where a person is missing, it may make a conclusive grounds decision only if sufficient information is available; otherwise the investigation should be suspended and appropriate safeguarding steps taken. Credibility concerns and inconsistencies must be addressed expressly.

Article 4 ECHR includes a protective duty where authorities know, or ought to know, of a credible suspicion that an identified person has been trafficked and is at real and immediate risk of re-trafficking. Immigration detention must comply with the presumption of release, applicable policy, proper periodic reviews and the heightened safeguards for adults at risk. Unexplained delay in making a reasonable grounds decision may render detention unlawful.

The claimant, a Vietnamese national, challenged the Secretary of State’s handling of his trafficking claims and his immigration detention for 70 days. He had initially been referred to the National Referral Mechanism in March 2016 and received a positive reasonable grounds decision. After he disappeared, the Competent Authority made a negative conclusive grounds decision without interviewing him or suspending the investigation.

Following his later conviction for cannabis production, the claimant was detained pending deportation. A further trafficking referral was delayed and initially treated as a duplicate. The central issues were whether the trafficking investigation, protective measures and reasonable grounds decision were unlawful, and whether the claimant’s detention complied with policy and Article 4 ECHR.

1. The claim succeeded. The court held that the 2016 conclusive grounds decision was irrational, unfair and contrary to the Competent Authority Guidance. By 27 April 2016 the claimant was likely to be missing. The later police account materially conflicted with the contemporaneous referral, yet the Competent Authority neither resolved the inconsistency nor fairly analysed the trafficking indicators. A negative decision could lawfully be made without an interview only where the available outcome was obvious, which was not this case.

2. The court applied the heightened scrutiny described in R (SF) (St Lucia) v Secretary of State for the Home Department [2016] 1 WLR 1439. The decision-maker had to grapple with credibility and explain why factors favouring the claimant were rejected. The failure to suspend the investigation also breached the Guidance.

3. Following R (TDT) v SSHD [2018] EWCA Civ 1395, Article 4 imposed systems, protection and investigation duties. The investigation duty identified in Secretary of State for the Home Department v H [2016] EWCA Civ 565 remained directed principally to identifying and prosecuting traffickers, but the protective duty could require action to safeguard a missing potential victim. The claimant was at real and immediate risk of re-trafficking, and the failure to secure safe accommodation or alert the police breached Article 4.

4. The failure to refer the claimant to the NRM promptly in May 2017, and the subsequent unexplained delay in making a reasonable grounds decision, breached policy. The five-day target was not absolute, but substantial delay required a good explanation.

5. The claimant’s detention was unlawful throughout the 70-day period. The presumption was in favour of release. The Secretary of State had not shown that public order grounds outweighed that presumption, particularly given the claimant’s medium risk of reoffending and harm, low culpability and trafficking indicators. The materially different cases of R (EA) v Secretary of State for the Home Department [2016] EWHC 1165 (Admin) and EM v Secretary of State for the Home Department [2016] EWHC 1000 (Admin) did not justify detention.

6. The detention reviews were inadequate because they repeated general conclusions without scrutinising and weighing the individual risks. The detention also became unlawful when Level 3 medical evidence was not properly considered. Under R (Kambadzi) v Secretary of State for the Home Department [2011] 1 WLR 1299 and R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245, the claimant was entitled to compensatory damages because lawful detention in any event had not been established.

The judgment records interim relief and permission proceedings before the Administrative Court. It does not state any appellate history.