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Court of Appeal: Support given to potential victim of trafficking in detention was sufficient

DATE: 21 May 2018

What is the nature and scope of the duty of the State to provide “assistance and support” to a potential victim of trafficking (“PVoT”) under Article 11 of Directive 2011/36/EU? Is a PVoT who, unusually, is detained, entitled to the same type of assistance and support that is given to PVoTs who are not detained?

In R (EM) v Secretary of State for the Home Department[2018] EWCA Civ 1070, the appellant argued that the duty under Article 11(2) and (5) to provide necessary medical treatment to PVoTs meant that each PVoT had to be assessed individually by someone expert in providing psychological assistance to victims of human trafficking. The appellant referred to the UK Government’s decision to commission the Salvation Army to arrange support for PVoTs who are not detained and submitted that similar or equivalent provision was required for those in detention.

The Court of Appeal (Arden, Sharp and Peter Jackson LLJ) agreed with the Secretary of State that Article 11 is not prescriptive as to how assistance and support is to be provided to PVoTs in all settings. It is lawful to support PVoTs in detention in a different way. The duty is to provide medical and psychological treatment appropriate to the individual’s overall needs.

On the facts of the case before the court, EM was known by staff at the detention centre to be a PVoT and she had received “constant treatment for her psychological difficulties” [69]. It was held that the State’s domestic and international legal oblgiations had been met.

Gwion Lewis (led by James Eadie Q.C.) acted for the Secretary of State for the Home Department.