R (on the Application of TDT, by his Litigation Friend Tara Topteagarden) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Underhill,Dame Elizabeth Gloster,Lord Justice Floyd |
| Judgment Date | 19 June 2018 |
| Neutral Citation | [2018] EWCA Civ 1395 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C4/2016/3834 |
| Date | 19 June 2018 |
and
[2018] EWCA Civ 1395
Lord Justice Underhill
Lord Justice Floyd
and
Dame Elizabeth Gloster
Case No: C4/2016/3834
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM High Court, QBD, Administrative Court
McGowan J
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Christopher Buttler (instructed by Simpson Millar LLP) for the Appellant
Mr Gwion Lewis (instructed by the Treasury Solicitor) for the Respondent
Ms Helen Mountfield QC (instructed by Equality and Human Rights Commission) for the Intervener)
Hearing date: 21 st and 22 nd February 2018
Judgment Approved
INTRODUCTION
This appeal concerns the treatment by the Home Office of a young Vietnamese man who is said to have been a victim of trafficking. The outline facts are as follows:
(1) The Appellant's detention. The Appellant was found by police with fifteen other young men or boys in the back of a lorry in Kent on 8 September 2015: six of them were also Vietnamese. The view was taken by the immigration authorities that he was over 18, and he was detained initially at the Dover Immigration Removal Centre and then at Brook House in Sussex, with a view to his being returned to Vietnam as soon as emergency travel documents could be obtained.
(2) Instruction of Maxwell Gillott. After a short period during which he was represented by a different firm of solicitors, on 23 October the Appellant was seen at Brook House by Ms Silvia Nicolaou Garcia of Maxwell Gillott (“MG” – at that time a trading style of Simpson Millar): I should say at this stage that her work on his behalf appears to have shown exceptional ability and commitment. He told Ms Nicolaou Garcia that his date of birth was 5 December 1999, which accorded with her own impression that he was significantly under 18. His account also indicated to her that he was a victim of trafficking. She passed that information to the Home Office case-worker the same day, and also wrote a short letter intimating an intention to bring proceedings for judicial review in respect of the failure to treat him as a child and his continued detention.
(3) Referral as a potential victim of trafficking. Ms Nicolaou Garcia arranged for the Appellant to be seen by Ms Tara Topteagarden, the Trafficked Boys' Adviser at the Refugee Council. She saw him on 28 October and referred his case that day to the Competent Authority under the National Referral Mechanism (“NRM”) for potential victims of trafficking, of which I give more details below.
(4) The letter of 28 October 2015. On 28 October MG wrote a pre-action protocol letter to the Home Office, though it does not appear to have been sent till the following day. The letter challenged various aspects of the Appellant's treatment, including the failure to conduct an age assessment and to recognise him as a potential victim of trafficking. It gave a full account of the facts relied on as showing that he had been trafficked from Vietnam. The letter asked that he be released from detention, but it said that he was at serious risk of falling back into the hands of his traffickers unless his release was accompanied by a package of arrangements which minimised the risk of that occurring. In particular, MG said that he should be released into safe and secure accommodation, to be provided by the local authority, West Sussex County Council (“the Council”), for assessment and services under sections 17 and 20 of the Children Act 1989; that a multi-agency meeting should be arranged; and that his case should be referred to the Kent police and the Human Trafficking Team of the Metropolitan Police. The letter was also sent to the Kent Police and to the Council. I give more details of its contents at paras. 51–54 below.
(5) The Home Office's non-response. The Council replied promptly to MG's letter, agreeing in principle to the proposed arrangements for the Appellant's release, and in particular saying that it would supply safe accommodation for him. However, there was no response from the Home Office, despite a chasing letter sent the following day.
(6) Commencement of proceedings. On 6 November judicial review proceedings were issued in the High Court, with Ms Topteagarden acting as the Appellant's litigation friend on the basis that he was under 18.
(7) The Appellant's release. Later that same day the Appellant was granted temporary admission, on condition that he reside at an address in south London, which it is now known was in fact the address of a Buddhist temple: I will come back to the circumstances of this in due course. MG learnt from the Appellant early in the afternoon that his release was proposed and wrote immediately to the Home Office protesting that he should not be released without the package of arrangements sought in the pre-action protocol letter; but his release proceeded nevertheless.
(8) The Appellant's disappearance. The Appellant has not been seen by anyone, and has not been in contact with MG, from the moment of his release. The police have made enquiries as to his whereabouts but without success. It is his solicitors' belief that he has been re-trafficked.
The Appellant's claim has been continued by MG, taking their instructions from Ms Topteagarden. There was some interlocutory activity in the immediate aftermath of his release, of which I need not give the details. On 14 January 2016 May J gave permission to apply for judicial review on a single ground, namely that the decision to release the Appellant without putting in place any measures to protect him against being re-trafficked was a breach of his rights under article 4 of the European Convention of Human Rights (“the ECHR”). That issue was heard before McGowan J on 20 and 28 April 2016: the Equality and Human Rights Commission (“the Commission”) was granted leave to intervene. By a judgment handed down on 29 July she dismissed the claim.
The Appellant appeals against that decision with the permission of Burnett LJ dated 28 April 2017. He observed that the appeal “raises new and important points in the context of human trafficking, something of growing practical and legal significance”.
The Appellant is represented by Mr Christopher Buttler, and the Secretary of State by Mr Gwion Lewis, both of whom appeared before McGowan J. The Commission has again been given permission to intervene and is represented by Ms Helen Mountfield QC, who also appeared below.
It is an unusual feature of the case that the proceedings are being continued on the Appellant's behalf in circumstances where he has had no contact with his solicitors since the day that they were commenced and where, whatever his age in 2015, he is on his own account now over 18. The Secretary of State has taken no point about this, but shortly before the hearing the Court asked his counsel and solicitors questions whether they believed that they continued to be properly instructed and also whether the proceedings had any continuing purpose in view of the Appellant's disappearance. As to the former question, Mr Buttler submitted that the instructions given by the Appellant himself at the time the proceedings were initiated constituted sufficient authority, even if he was a minor at the time: he referred us to the old case of Helps v Clayton (1864) 17 CB (NS) 553 and also the provisions of CPR 21.9. As to the practical value of the proceedings, he submitted that it remained possible that the Appellant might yet re-emerge, in which case the declaration being sought could form the basis of a claim for damages. In circumstances where the Secretary of State had raised no objection, and where Burnett LJ had emphasised the wider importance of the issues raised, we did not think it necessary to pursue the point further.
THE LAW
The law relating to the treatment of victims, and potential victims, of trafficking derives partly from European instruments and partly from domestic sources, though the former are to a greater or lesser extent ultimately the basis for the latter. It will be convenient to consider them separately.
THE EUROPEAN INSTRUMENTS
There are three relevant European sources of law for our purposes. Two – the Anti-Trafficking Convention and article 4 of the ECHR – derive from treaties entered into by the member states of the Council of Europe; the third takes the form of an EU Directive. We are principally concerned with the former two, which, as will be seen, closely inter-relate; but I will also briefly summarise the relevant parts of the Directive.
(1) The Anti-Trafficking Convention
In December 2005 the member states of the Council of Europe agreed the Convention on Action against Trafficking in Human Beings. It drew to a considerable extent on the earlier “Palermo Protocol” to the UN Convention against Transnational Organised Crime. “Trafficking” is defined in article 4 of the Convention as follows:
“For the purposes of this Convention:
(a) ‘Trafficking in human beings’ shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;
(b) The consent of a victim of ‘trafficking in human beings’ to the intended exploitation set forth...
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