Secretary of State for the Home Department v Minh

On 20 September 2013 a body within the Home Office known as “the Competent Authority” concluded on behalf of the appellant Secretary of State that the respondent had failed to show that there were reasonable grounds to believe that he was a victim of trafficking. The decision was maintained in two further decision letters during the following three weeks after representations had been made by solicitors acting on behalf of the respondent. The decision was made pursuant to policy guidance (“the Guidance”) put in place to satisfy some of the international obligations of the United Kingdom following its becoming a party to the Council of Europe Convention on Action Against Trafficking in Human Beings, CETS No. 197 (“the Anti-Trafficking Convention”). Had the decision been to the opposite effect, the Competent Authority would have gone on to consider whether the respondent was in fact a victim of trafficking with consequences capable of affecting whether he would be able to remain in the United Kingdom, at least in the short term. The respondent challenged the decision in judicial review proceedings. By an order of 18 June 2015 Helen Mountfield QC, sitting as a Deputy High Court Judge, quashed the decision with the consequence that it fell to be remade: [2015] EWHC 1725 (Admin). The judge found that in coming to his decision, the official concerned had failed to apply the Guidance correctly in various respects. The judge also declared that there had been a breach of article 4 of the European Convention on Human Rights (“ECHR”). That provides:

“1.

No one shall be held in slavery or servitude.

2.

No one shall be required to perform forced or compulsory labour.

3

…”

The declaration was made on the basis that the United Kingdom had failed to comply with the procedural obligation implicit in article 4 ECHR to investigate cases of slavery and forced labour. The judge decided that the failure to abide by the Guidance in making the reasonable grounds to believe decision inexorably led to that conclusion.

The Secretary of State does not seek to upset the order of the judge that the decision was flawed as a result of its failure to apply the Guidance. There is a single ground of appeal, namely that the judge erred in concluding that there was a breach of article 4 ECHR and, in particular, that a failure to apply the Guidance could give rise to a breach of article 4.

The matter was remitted to the Competent Authority to remake the decision. The respondent had also made an application for asylum on the basis of his stated fear of what would befall him were he to be returned to Vietnam, of which he is a national. The asylum application was rejected and the respondent was unsuccessful in his appeal to the First-tier Tribunal and then Upper Tribunal long before the judicial review proceedings were heard. We were told that by the time the reasonable grounds to believe decision came to be remade the respondent had disappeared. That became apparent when the Competent Authority tried to contact him and was confirmed by his solicitors who have also lost contact with him.

No findings of fact were made in the course of the judicial review proceedings. What follows is a description of the respondent’s account, which comprised the information before the Competent Authority at the time that the decision was made. It had been augmented by a report from an expert in migration, Abigail Stepnitz, dated 3 October 2013 which was provided to the Home Office with the correspondence designed to achieve a change of mind following the decision of 20 September 2013.

The respondent is a Vietnamese national born on 19 September 1990. He gave an account of his early life in Vietnam as a trainee Buddhist monk. He suggested that he had encountered problems in Vietnam because of his religious and imputed political beliefs. He was arrested and detained for a few days in May or June 2009. Although he was released, the authorities continued to have an interest in him. Arrest warrants were issued. As a result, the respondent decided to leave Vietnam with the assistance of his spiritual master. In September 2009 he travelled on false documents by air to Russia. On his arrival he was taken by force to a garments factory. He was unable to go to the address he had been given by his spiritual master. He was told that his spiritual master had not paid the full price for the journey and so the respondent was expected to work to pay off the debt. His belongings were confiscated and he was put to work for between 10 and 15 hours a day. There were perhaps 10 or more other workers in the factory. The respondent was fed, clothed and housed at the factory but he was not paid. He was a prisoner. He and the other workers were released unexpectedly in June or August 2013 because the Russian authorities were poised to arrest those running the factory. He was given $2,000 by the owners to get away. There was an arrangement with the factory owners that the respondent and other workers would be fed “and would get some money when we departed”. The appellant suspected that they had been given money to disappear before the police arrived.

The respondent believed he had a sister in the United Kingdom and “workmates had told me to go to the UK so I followed them to the UK”. After leaving the factory, he and three persons who also wanted to travel to the United Kingdom contributed $1,000 each to someone to take them to London. He travelled first to France on “a fishing boat or lorry ship”. The boat was “silver grey” and had some “black and some white fishermen”. He remained in France for about a month before getting into a lorry to cross the channel. They boarded the lorry at 02.00 on 2 September 2013, crossed the channel and were picked up by the Police at a petrol station in the United Kingdom later that afternoon. The respondent was arrested but no criminal proceedings followed. We have no information about the fate of the others in the lorry, or its driver. The respondent was detained using immigration powers whilst his asylum application and subsequent appeal were dealt with.

In his account to Ms Stepnitz the respondent confirmed the details of his early life, travel to Russia, his treatment there and the circumstances of his release from the factory with $2,000. He told her that he had been given the names of people he might contact in the United Kingdom, but at that stage he was unwilling to tell her (or the police) who they were. There was no suggestion that he was being delivered to anyone in particular or that he was obliged to make contact with these people. He was frightened because he feared that the names might be people connected with those who had organised his travel from Vietnam to Russia and was conscious that if his asylum appeal failed, he might be returned there swiftly. He was frightened that if he shared the addresses it would be obvious that he had done so, and he might be in danger. Ms Stepnitz gave the respondent the details of the Metropolitan Police team dedicated to investigating trafficking. The respondent’s solicitors later made contact with them. We have been told that after his asylum appeal failed the respondent indicated that he would co-operate with the police. Ms Stepnitz’s conclusion was that the respondent had been trafficked from Vietnam to Russia and that “given the amount of fear [he] presents regarding the addresses he was given in the UK it is a possibility that he would have faced exploitation in this country as well.”

The Anti-Trafficking Convention is one of many international measures designed to combat trafficking in human beings. Others have their origins in the United Nations and the European Union and, indeed, the Slavery Convention of 1926 which entered into force in 1955. The Anti-Trafficking Convention is a Council of Europe agreement which most, but not all, of the States Parties to the ECHR have signed and ratified.

The explanatory report accompanying the Anti-Trafficking Convention described trafficking and entrapment of victims as a modern form of slavery, as does the preamble. It was designed to promote the prevention of trafficking, the protection of the human rights of the victims of trafficking and the prosecution of those responsible. Those objectives are enshrined in article 1. Article 4a provides a definition of trafficking as meaning,

“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, as 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.”

Articles 5 and 6 require parties to the Anti-Trafficking Convention to take measures to prevent trafficking, to strengthen international co-ordination and to take measures to discourage the demand for trafficked persons. Article 10(2) provides that if the competent authorities of a State Party have “reasonable grounds to believe that a person has been” a victim of trafficking, that person shall not be removed from the party’s territory until a process of identifying whether the person is a victim has been completed. In the meantime article 12 stipulates that various forms of support should be provided. Article 13 requires a minimum of 30 days for recovery and reflection to be given to anyone in respect of whom there are reasonable grounds to believe that he has been trafficked, even if those suspicions turn out to be unfounded. During that period the person may not be removed. The United Kingdom gives at least 45 days. Article 14 requires persons to be given residence permits for so long as is necessary to co-operate in a criminal investigation and prosecution.

Articles 18 to 21 require States Parties to criminalise various aspects of conduct connected to trafficking. Articles 27 and following deal with the investigation and prosecution of crimes associated with trafficking; and articles 32 and 33 with international co-operation in cross border cases.

The decision under challenge in this case, being made as it was pursuant to the Guidance, was the decision whether there were reasonable grounds to believe that the respondent had been a victim of trafficking for the purposes of article 10(2). Had the decision been that there were reasonable grounds to believe that the respondent was the victim of trafficking, the 45 day reflection period would have started. The police would have been informed and the respondent would have been granted temporary admission. During the 45 day period the Competent Authority would have carried out further inquiries and, if necessary, gathered further evidence to enable a substantive decision to be made whether or not he had been trafficked to be taken.

Unless the evidence from the person concerned is compelling at the reasonable grounds stage, a further interview may follow. If the Competent Authority then decides that a person is the victim of trafficking and is co-operating with a police inquiry discretionary leave to remain would be granted for 12 months, in the first instance.

The letter of 20 September 2013 explained that it was concerned with the question whether there were reasonable grounds to believe that the respondent was a victim of trafficking for the purpose of assessing his entitlement to assistance under the Anti-Trafficking Convention. The decision maker considered that the account given by the respondent of how he left Vietnam was “riddled with anomalies” and, in any event, that there was no suggestion of coercion or deception relating to the journey to Russia. Furthermore, the account of exploitation in Russia did not suggest pre-arrangement but rather a random encounter with a criminal group. The decision maker considered that that there were doubts about the credibility of the respondent’s account of what had occurred in Russia, which contained inconsistencies. The respondent’s account was not accepted. The decision maker concluded that the respondent did “not meet … the definition of trafficking. Therefore there are no reasonable grounds to consider that you are a victim of trafficking from Vietnam to the UK.” He went on to explain that even had it been accepted that the respondent had been trafficked to Russia the question arose whether there was any evidence that “elements of human trafficking continue to apply”. In that regard it was noted that there had been no contact with the Russian captives since departure from their control and that the respondent was beyond their influence or control. The respondent had said that he was not physically harmed and had not suggested any emotional harm. He had raised no complaint regarding his situation in the United Kingdom and there was no criminal investigation into trafficking. The decision letter of 20 September explained that if the respondent considered that he had been the victim of any crime in the United Kingdom, he could report it to the police who would then have a duty to investigate. He was warned that if his asylum claim failed he might be liable for removal.

In a letter dated 25 September following further representation, the Competent Authority recognised that the respondent’s account contained indicators of trafficking which was the reason why his case had been referred in the first place. Nonetheless, the decision was maintained that the weaknesses in the evidence meant that those indicators did not surmount the reasonable grounds threshold. Ms Stepnitz’s report was then sent under cover of a pre-action protocol letter, together with a further statement from the respondent, but the Competent Authority was unmoved. In a letter dated 14 October it maintained the earlier decision with detailed criticisms of Ms Stepnitz’s report and the new material from the respondent.

It was common ground before the judge that if the Competent Authority had materially departed from the published policy governing the approach it would adopt at the reasonable grounds stage of dealing with a possible victim of trafficking that would amount to an error of law, para 55 of the judgment below. The claim was advanced on what was described in the claim form as a single ground namely “failure to apply relevant guidance when making the reasonable grounds decision”. It had five components:

The judge considered sub-grounds (ii) to (v) in order before returning to (i). She concluded that the Competent Authority had failed to have regard to the State Department report, although that would not be sufficient to quash the decision, para 95. She found that the Guidance on assessing credibility had not been followed, para 107. She took sub-grounds (iii) and (iv) together. She would not have found them established had the Competent Authority approached the reasonable grounds for suspicion test correctly, rather than requiring the respondent to make out his case at that stage, para 112. As regards sub-ground (i) the Competent Authority applied the wrong evidential standard at the reasonable grounds stage.

The conclusions I have summarised were reached on the basis of the judge’s consideration of the decision letter of 20 September 2013. She then considered the subsequent decision letters. Far from curing any of the defects in the decision making process identified, they exacerbated them, para 128. At para 129 she continued:

“For these reasons, I find that the reasonable grounds decisions taken by the Competent Authority in this case were flawed by failure to address the right question; to apply the right burden of proof; and failures to apply the sympathetic and inquisitorial approach to credibility advocated in the Defendant’s Guidance.”

The reference to burden of proof should, I think, be standard of proof. At all events the decision was quashed and remitted. That was the limit of the relief sought. It formed no part of the argument advanced below that the Competent Authority was bound to accept that the respondent had demonstrated reasonable grounds to believe that he was a victim of trafficking.

The grounds in support of the application for permission to apply for judicial review mention article 4 ECHR in passing in only two places. First, they refer to the decision of the Strasbourg Court in Rantsev v Cyprus and Russia [2010] 51 EHRR 1. At para 282 of Rantsev the court stated that trafficking within the meaning of article 4(a) of the Anti-Trafficking Convention, falls within the scope of article 4 ECHR. Secondly, the grounds refer to paras 284 to 289 of that judgment, without any quotation from them, as identifying the positive duties imposed on parties to the ECHR by article 4. Those duties are, first, to penalise and prosecute conduct falling within the scope of article 4, para 285. Secondly, in some circumstances, to take operational measures to remove individuals from circumstances that encompass treatment prohibited by article 4, para 286. Thirdly, the procedural obligation in issue in these proceedings. No argument by reference to article 4 ECHR was developed in the grounds. At the end of the grounds this appears:

“Ground Two: Breach of Article 4 ECHR

By reason of the matters set out at Ground One [the defendant] has breached the positive obligation on her to identify victims of trafficking.”

The skeleton argument below, in so far as it touched on article 4 ECHR, reproduced the same words as had appeared in the grounds. The pleadings and skeleton argument filed on behalf of the Secretary of State below were similarly exiguous. The skeleton quoted from para 288 of Rantsev, which identified the procedural obligation under article 4 ECHR. It also quoted from para 71 of the court’s later decision in CN v United Kingdom [2013] 56 EHRR 24, a case involving an allegation that a woman was trafficked to the United Kingdom and enslaved. The main complaint was that the laws in place in the United Kingdom were inadequate to comply with the first obligation identified in Rantsev. Additionally, the applicant alleged that there had been a failure to investigate her complaints. The judgment stated:

“The Court observes that in Rantsev, in the context of trafficking, it held that in order for an obligation to investigate to have arisen, the circumstances must have given rise to a “credible suspicion” that the applicant had been trafficked. Likewise, it considers that for an obligation to have arisen in the present case, it must be satisfied that the applicant’s complaints to the domestic authorities gave rise to a credible suspicion that she had been held in domestic servitude.”

In a single paragraph of the skeleton argument it was submitted that the article 4 ECHR claim added nothing. It took issue with the formulation of the procedural duty being to identify victims of trafficking. Mr Staker, who appears for the appellant, explained without dissent from Miss McCarthy that the article 4 ECHR aspect of the claim for judicial review was not developed in oral submissions on either side before the judge. The judge noted that the Anti-Trafficking Convention had not been incorporated into domestic law, that trafficking fell within the scope of article 4 ECHR and that there was a procedural obligation to investigate potential trafficking. She added that if the “procedures undertaken by the Secretary of State did not match up to the demands” of the Anti-Trafficking Convention, “that might be persuasive evidence that there had been a breach of the positive investigative obligation under article 4 ECHR”, para 52. The judge’s approach to Ground 2 was encapsulated in para 63:

“Counsel for the Claimant did not seek to analyse Ground 2 separately, and nor have I. If the decision-maker has not properly and fairly applied the Secretary of State’s Guidance intended to protect the human rights of the putative victims of trafficking, then it will follow that there has been a breach of the positive obligations under Article 4. No other basis for suggesting a breach of Article 4 has been advanced, so if there is no failure properly and fairly to apply the Guidance, then there has been no violation of Article 4.”

The judge expressed her conclusion on the article 4 issue in para 130 of the judgment, which with para 129 came within a section headed “relief”:

“In the circumstances, the decision-maker breached the positive obligation of reasonable investigation in Article 4 ECHR, contrary to section 6(1) of the Human Rights Act 1998.”

In refusing permission to appeal the judge observed in her written observations that she had understood both parties to have agreed that

“the Guidance was the mechanism through which the United Kingdom complied with that positive obligation. … The dispute was about whether the guidance had properly been applied …the claimant contended that it had not and that it followed that there was a breach of article 4.”

Mr Staker submits that the judge erred in concluding that a failure to abide by the Guidance in connection with the reasonable grounds decision, without more, led to a breach of article 4 ECHR. He labelled this as the ‘ipso facto’ argument. A finding of a breach of article 4 could only follow a consideration of the law as articulated by the Strasbourg Court with appropriate findings of fact accompanied by an analysis of why the procedural obligation had been breached. He submits that it is wrong to suggest that the decision making processes and obligations found in the Guidance, concerning a cooling off period, the two stage decision and subsequent possible relaxation of immigration measures if it is accepted that a person has been the victim of trafficking can be properly equated with the procedural obligation under article 4. In any event, they reflect only one part of the Anti-Trafficking Convention. The article 4 procedural obligation is concerned principally with the identification and prosecution of wrongdoers, about which the Anti-Trafficking Convention has much to say, but has nothing to do with the Competent Authority. The Guidance is not the mechanism through which the United Kingdom discharges its obligations under article 4 ECHR but a description of the mechanisms in place to enable the United Kingdom to discharge a small part of its obligations under the Anti-Trafficking Convention. Mr Staker points to the fact that if there is a positive decision under the Guidance at the reasonable grounds stage, the police are notified. Furthermore, the police may become involved from the outset where they judge that crimes may have been committed. The police were notified on behalf of the respondent of matters relevant for criminal investigation in this jurisdiction. In reality, the criticism advanced against the Competent Authority in this case was of the quality of analysis of the information that was available, rather than of a failure to investigate.

Mr Westgate QC accepts that if the judge applied the ipso facto approach she was wrong to do so. A failure to apply the Guidance for making reasonable grounds decisions cannot, without more, amount to a breach of the procedural obligation under article 4 ECHR. That said, he submits that the judge did not do so. Rather, the breach of article 4 flowed from the combination of features identified by the judge. Mr Westlake submits that whilst the respondent did not identify himself as having been trafficked to the United Kingdom, by contrast with the situation in Russia, there were nonetheless indicators that he had been. In respect of both aspects, indicators that the respondent was a victim of trafficking were sufficient to trigger the investigative obligation. The formulation of the Strasbourg Court of “credible suspicion” meant no more than that there were indicators present. He submits that the duty to investigate imposed upon one State Party to the ECHR encompasses a duty to investigate trafficking wherever it may have occurred. In the respondent’s case the quality of both the investigation and analysis by the Competent Authority was poor. The judge’s conclusion was correct.

The procedural obligation under article 4 ECHR was identified by the Strasbourg Court in Rantsev at para 288 and described in terms similar to the procedural obligation which arises under article 2 in cases of death and article 3 in cases of suspected torture etc. It requires no complaint from a victim but should be pursued once the matter comes to the attention of the authorities. The investigation should be prompt and reasonably expeditious but in cases where there is a possibility of removing someone from harm, urgency is required. The investigation must be effective in the sense that it is capable of leading to the identification and punishment of those responsible. The court used a phrase which appears in the article 2 and article 3 cases, namely “an obligation not of result but of means.” That means that the obligation is not to identify, prosecute and punish those responsible but to have an investigation capable of achieving that end.

Paragraph 288 itself talks of an “obligation to investigate situations of potential trafficking” but as the Strasbourg Court observed in CN the duty arises when there is a “credible suspicion” that a person has been trafficked. That chimes with the language used by the Strasbourg Court in connection with the procedural obligation under article 3 which arises when “an arguable claim” of serious ill-treatment is raised: see, for example, para 102 of Assenov v Bulgaria (1988) 28 EHRR 652.

The trafficking of human beings will frequently involve activity in two or more jurisdictions. This case illustrates the point. There is a suggestion that the respondent was trafficked from Vietnam to Russia. On any view, there is a suggestion that he was subjected to forced labour in Russia. There was then a suggestion that he might have been vulnerable to further exploitation in the United Kingdom were he to make contact with the individuals whose details he had been given. The ECHR does not impose procedural obligations upon States Parties to investigate matters which are outside their jurisdiction for the purposes of article 1 ECHR. This is reflected in para 289 of the judgment in Rantsev:

“Finally, the Court reiterates that trafficking is a problem which is often not confined to the domestic arena. When a person is trafficked from one State to another, trafficking offences may occur in the State of origin, any State of transit and the State of destination. Relevant evidence and witnesses may be located in all States. … [T]he Anti-Trafficking Convention explicitly requires each member State to establish jurisdiction over any trafficking offence committed in its territory (see paragraph 172 above). Such an approach is, in the Court’s view, only logical in light of the general obligation, outlined above, incumbent on all States under Article 4 of the Convention to investigate alleged trafficking offences. In addition to the obligation to conduct a domestic investigation into events occurring on their own territories, member States are also subject to a duty in cross-border trafficking cases to cooperate effectively with the relevant authorities of other States concerned in the investigation of events which occurred outside their territories. Such a duty is in keeping with the objectives of the member States, as expressed in the preamble to the Palermo Protocol, to adopt a comprehensive international approach to trafficking in the countries of origin, transit and destination (see paragraph 149 above). It is also consistent with international agreements on mutual legal assistance in which the respondent States participate in the present case (see paragraphs 175 to 185 above).”

In this part of its judgment the Strasbourg Court was careful to reflect the limits of the reach of the ECHR. The procedural obligation to investigate violations of article 4 ECHR, i.e. trafficking offences in this context, relates to such offences within a state’s own jurisdiction. There is no obligation to investigate trafficking offences which might have occurred within the jurisdiction of other states (whether parties to the ECHR or not). The limit of the duty in those circumstances is to cooperate with other states, in particular through the use of international mutual legal assistance.

Thus, the focus of the procedural obligation under article 4 is to investigate cases of alleged trafficking and to identify those responsible for crimes committed within the jurisdiction of the State Party in question with a view to prosecution for offences which have occurred within that jurisdiction. It is also concerned with immediate relief for those suffering harm and coercion. This latter aspect of the investigative obligation would arise, for example, if a credible report were received that a factory of the sort in Russia described by the respondent were operating in this country.

The Anti-Trafficking Convention has a wider scope. It is concerned with the immediate treatment to be accorded to those in respect of whom there are reasonable grounds to believe that they are victims of trafficking. It is also concerned with their medium term treatment for immigration purposes in the event that it is accepted administratively that they have been trafficked. It is also concerned with the criminalisation of behaviour associated with trafficking and the need to investigate and prosecute offences.

The Competent Authority within the Home Office is responsible through the Guidance for only a part of the satisfaction of the international obligations assumed by the United Kingdom pursuant to the Anti-Trafficking Convention. The functions performed by the Competent Authority have no bearing at all upon the second aspect of the procedural obligation identified by the Strasbourg Court (urgent investigations to relieve those subject to coercion etc.) because it is concerned with the position of someone who necessarily is no longer subject to coercion, whatever may have been the earlier position. Referrals to the Competent Authority are made in respect of foreign nationals who have come to the attention of another public body, often the police or immigration officials. Moreover, the Competent Authority is not an investigative body for the purposes of alleged crime or subsequent prosecution. Its task is to decide whether there are reasonable grounds to believe that a person has been trafficked and then, if appropriate, whether he has in fact been trafficked. The purpose of doing so is to provide humanitarian support, to allow the cooling off period and then to inform immigration decisions. It is true that as part of that process the police will be informed if the Competent Authority concludes that there are reasonable grounds to believe an offence has been committed. In that way an investigation will follow whether or not the person concerned initiates the process. But a positive decision by the Competent Authority is not a necessary step to the making of a criminal complaint. This case illustrates that the police may become involved whatever the approach of the Competent Authority.

Furthermore, the question whether someone had been a victim of trafficking, when under consideration by the Competent Authority, is not confined to the position in the United Kingdom. The decision maker in this case considered whether the respondent had been trafficked from Vietnam to Russia, and the circumstances of what had occurred in Russia over a period of almost four years. Indeed, the judge was understandably critical of the decision maker’s approach to the evidence relating to Vietnam and Russia which gave the impression that “he simply picked holes in inconsistencies and implausibilities in the Claimant’s account of why and how this came to pass”, para 104. Of course, what has happened to a person before he arrives in the United Kingdom may shed light on the question whether he has been trafficked to the United Kingdom. But it does not follow that article 4 ECHR imposed, in this case or similar cases, a duty to investigate the circumstances in which the respondent lived and worked in Russia.

I have noted that it was accepted on behalf of the respondent that if the judge had concluded that a failure to abide by the Guidance without more supported the conclusion that there was a breach of the procedural obligation under article 4 ECHR, she would have fallen into error. In my view, that was a concession correctly made because the Guidance is directed at a different target from the procedural obligation, and in many ways. Mr Westgate sought to demonstrate by a close analysis of the language of the judge that she had not fallen into that error, but that the conclusion that there was a breach of article 4 ECHR flowed from the particular combination of circumstances she identified in para 129 as failing to follow the Guidance. In my judgment, that submission runs into fundamental difficulties in the face of the language used in the judgment, and confirmed in the written refusal of permission to appeal. Whilst the judge prefaced her conclusion in para 130 with the words “in the circumstances”, the clear language of para 63 (quoted above and confirmed in the refusal of permission decision) suggests that she accepted the submission then advanced on behalf of the respondent that without more a failure to follow the guidance would demonstrate a violation of the procedural obligation under article 4 ECHR.

I have much sympathy for the judge. The article 4 argument was treated as a make-weight by both parties and was the subject of no developed argument. The Anti-Trafficking Convention was relevant to define conduct which fell with the scope of article 4. That was the conclusion of the Strasbourg Court in Rantsev. However, the step by step procedures envisaged by the Anti-Trafficking Convention (as reflected in the Guidance) were not read over in Rantsev as providing a surrogate for the procedural obligation under article 4 ECHR.

The difficulty in treating the Guidance, or any part of it, as a stepping stone to a finding of a violation of the procedural obligation under article 4 is more far-reaching than the question whether to adopt the ipso facto approach. In my judgment, the decision making process described in the Guidance, at the reasonable grounds stage and then the substantive decision stage, is concerned with the welfare of putative victims and then their treatment for immigration purposes. The involvement of the Competent Authority is not for the purpose of discharging the procedural obligations of the United Kingdom under article 4 ECHR. In short the application of the Guidance is not the mechanism by which the United Kingdom satisfies the procedural obligation under article 4. That becomes all the more clear when considering its role.

This appeal is concerned with the procedural stage in the Guidance which leads to a conclusion whether there are reasonable grounds to believe that the respondent was a victim of trafficking. The procedural obligation under article 4 arises when there is a “credible suspicion” that a person has been trafficked. Mr Westgate submits that “credible suspicion” is not the same as “reasonable grounds to believe”. To my mind, in using the term “credible suspicion”, just as “potential trafficking” or indeed “arguable claim” in article 3 cases, the Strasbourg Court is drawing a distinction between mere allegations and those with sufficient foundation to call for an investigation. The procedural obligation does not arise simply on the making of an allegation. There is a very low threshold under the Guidance for a case to be referred to the Competent Authority – in reality, any suspicion or any claim – but that is not sufficient to trigger the procedural obligation under article 4.

The decision of the Competent Authority in this case was for all practical purposes applying a threshold the same as “credible suspicion” or “arguable claim”. For reasons enumerated by the judge its conclusion was flawed. The respondent’s disappearance has deprived the Competent Authority and the respondent himself of a fresh decision. But absent a decision that such reasonable grounds exist, or a finding of a court that the “credible suspicion” hurdle has been overcome, the question whether an investigative process has failed to comply with the procedural obligation under article 4 cannot arise. The judge made no such finding; indeed remitting the matter for a fresh decision left open the possibility that the Competent Authority could decide again, and lawfully, that reasonable grounds to believe did not exist. Were that to have happened the procedural obligation would not have arisen.

Even having surmounted the reasonable grounds hurdle, had the Competent Authority then considered whether the person concerned was in fact a victim of trafficking, that second decision making process would not be concerned with the identification of wrongdoers and their possible prosecution. That function is the responsibility of the police and Crown Prosecution Service. The Competent Authority may make its own investigations, including seeking to interview the person concerned, but it is not a body with any constitutional responsibility for investigating or prosecuting crime, or identifying wrongdoers.

Its functions under the guidance are squarely focussed upon the alleged victim, and his welfare. Its role in a possible criminal investigation is limited to informing the police of a credible allegation of wrongdoing, having made a positive reasonable grounds decision. If it fails to do so, the person concerned may inform the police (as happened here via his solicitors). It is difficult to envisage how a failing even at the second substantive decision stage by the Competent Authority could feed into an assessment whether the United Kingdom was in breach of the article 4 procedural obligation. Perhaps, if it failed to notify the police of a positive reasonable grounds decision, and the person concerned was removed from the United Kingdom before the police could investigate a crime justiciable in this jurisdiction, its failure might found a successful complaint under article 4. But ordinarily in these circumstances there will have been a referral to the police whose function it is to investigate crime. It is possible to envisage a complaint that a police investigation was inadequate and, given its centrality in the prosecution of criminal wrongdoers, gave rise to a violation of the article 4 procedural obligation. But in the absence of a procedural obligation being assumed by a single public body (as may be the case, for example, with many coroners’ inquests and article 2), a suggested violation would engage an evaluation of the overall response of various public bodies involved.

Moreover, the Guidance is concerned with a broader geographical consideration of trafficking than the procedural obligation which would arise, if at all, in the terms identified in Rantsev at para 289. For the purposes of the two stage decision under the Guidance it matters not where the trafficking may have occurred. By contrast, as already noted there is no obligation under article 4 ECHR for the United Kingdom to investigate allegations of trafficking from Vietnam to Russia, or forced labour within Russia, although both might be central to a consideration of whether the respondent was a victim of trafficking for the purposes of the Guidance, whatever the consequences which may flow from the finding. Para 289 establishes the parameters of the obligation under article 4.

The judge recorded as “uncontroversial” the proposition that if the procedures adopted by the Secretary of State did not match the demands of the Anti-Trafficking Convention “that might be persuasive evidence that there had been a breach” of the investigative obligation. In my view, that proposition is not supported by the decision of the Strasbourg Court in Rantsev. It draws on the Anti-Trafficking Convention for the purpose of establishing the scope of conduct prohibited by article 4 ECHR but the obligations under the former are not read over directly into the procedural obligation under the latter. The judge was led into understandable error for want of argument on the point.

In the result I am unable to agree that in the respondent’s case there was a breach by the Competent Authority of the procedural obligation under article 4 ECHR and would allow the appeal and set aside the declaration made to that effect.

I agree.

I also agree.