H v Secretary of State for the Home Department

The support duty owed to victims of trafficking requires assistance responding to objectively assessed individual welfare needs. It does not automatically incorporate every obligation imposed by detention rules, such as a doctor’s examination within 24 hours. Judicial review is generally unsuitable for resolving contested clinical and factual evidence. A person trafficked as a child but identified as an adult is treated as an adult for support and safeguarding purposes, although the trafficking assessment must apply the child-victim criteria. Individual errors do not, without more, justify a declaration requiring a systemic review. Declaratory relief remains discretionary and should be refused where it would serve no practical purpose.

The claimant, a Vietnamese national, was trafficked to the United Kingdom as a minor and later convicted of producing cannabis. After his immigration detention, the Home Office accepted that he was a victim of trafficking. He challenged the adequacy of the medical and other support provided in detention under the Directive, the Anti-Trafficking Convention, Article 4 of the ECHR and Home Office guidance.

He also sought permission to pursue a claim alleging systemic failures in the handling of trafficking cases. Other challenges had been withdrawn, conceded or resolved. The issues were whether the support duty had been breached and whether the claimant’s individual errors justified wider declaratory relief.

1. Ground 2 dismissed. The claimant had not established that the Secretary of State breached the support duty owed to him as a trafficking victim.
2. The duty under Article 11 of Directive 2011/36/EU, read with the Convention and guidance, required medical treatment and psychological assistance responsive to objectively assessed individual welfare needs. It did not require specialist trafficking treatment or treatment directed only to consequences of trafficking. R (EM) v Secretary of State for the Home Department [2018] EWCA Civ 1070 cautioned against adding obligations not found in the relevant texts.
3. The support regime had to be distinguished from obligations under the Detention Centre Rules 2001. Rule 34 could require a doctor’s examination within 24 hours, subject to consent, but the court found no equivalent requirement arising from the trafficking-support regime.
4. Article 14 of the Directive did not assist the claimant because, during the relevant period, he was an adult. The guidance sensibly required a person trafficked as a child but identified as an adult to be assessed under the child-victim criteria, while being treated as an adult for support, services, safeguarding and immigration leave.
5. Judicial review was not an appropriate vehicle for resolving disputed evidence about language difficulties, consent, or whether one clinician’s assessment fell outside the range of reasonable clinical judgment. Any proved additional loss could be considered in assessing damages for unlawful detention.
6. Ground 4 refused permission. The claimant’s case disclosed errors, including the use of the wrong referral form and the first conclusive grounds decision being made using adult criteria. The delay was not unlawful, and the asylum and humanitarian protection refusals had already been accepted as unsustainable. Those individual errors did not establish systemic unlawfulness warranting a declaration. R (PK (Ghana)) v Secretary of State for the Home Department [2018] EWCA Civ 98 was distinguishable because it concerned unlawful guidance.
7. The court refused permission on Ground 4, dismissed the judicial review claim on Ground 2, and invited directions concerning assessment of damages for unlawful detention.

First-instance judicial review proceedings in the High Court (Administrative Court). The judgment records earlier concessions and orders concerning unlawful detention and refusals of discretionary leave, but no appeal from a lower court decision.