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First judicial review claim alleging breach of Article 4 ECHR operational duty in trafficking case dismissed

DATE: 29 Jul 2016

The Secretary of State has successfully resisted the first judicial review claim to allege that she breached her “operational duty” under Article 4 ECHR in relation to a person at risk of being trafficked.

In R (TDT) v Secretary of State for the Home Department [2016] EWHC 1912 (Admin), a Vietnamese national (T) had been found in a lorry with 15 other males, 7 of whom were also from Vietnam. The Home Office detained T, but he challenged his detention by judicial review, adding that he should not be released until safeguarding measures had been put in place given that he was at risk of being re-trafficked. However, a few hours after the claim was issued, and before it had been processed by the Government Legal Department, the Home Office released T. T then disappeared. He had not been found before the matter came before the court.

A litigation friend acting on behalf of T claimed that the Secretary of State had breached her duty under Article 4 ECHR by failing to take reasonable steps to protect T when she knew, or ought to have known, that he was at “real and immediate” risk of being re-trafficked.

McGowan J dismissed the claim. Despite the objective evidence about the “high incidence” of young people from Vietnam being trafficked into the UK., the fact that T was a young Vietnamese male found in a lorry was not enough by itself, said the judge, to give rise to a credible suspicion that he was a trafficking victim. The decision to release him from detention did not breach the Secretary of State’s operational duty under Article 4 ECHR.

Gwion Lewis acted for the Secretary of State for the Home Department.