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Court of Appeal declares Home Secretary breached duty to protect potential victims of trafficking under ECHR, art 4

Related Member(s):
Chris Buttler, Helen Mountfield QC
Related Practice Area(s):
Human Rights, Immigration, Asylum and Free Movement, Public Law

In the first finding by a domestic court of a breach of the duty to protect potential victims of trafficking under ECHR, art 4 (“the protection duty”), the Court of Appeal declared that the Home Secretary violated the art 4 rights of a Vietnamese boy by releasing him from her custody without putting in place measures to protect him from his traffickers.

The Court held that the protection duty is triggered where state authorities are aware, or ought to be aware, of circumstances giving rise to a credible suspicion that an individual has been, or is at real and immediate risk of being, trafficked [18]. Any past victim of trafficking should be regarded as at potentially real and immediate risk of re-trafficking. In practice, the Home Secretary will need to assess the risk of any such individual being re-trafficked [41]. Membership of a class of person which is frequently trafficked may be sufficient by itself to give rise to a credible suspicion for the purpose of the protection duty [47]. The Court of Appeal found that the Home Office’s conduct made for “a sorry story” [73] and that its response to the evidence that the appellant was a child was “reprehensible” [85].

Chris Buttler instructed by Simpson Millar and Helen Mountfield QC instructed by the Equality and Human Rights Commission.