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Refusal to investigate trafficking claim did not breach ECHR

The Competent Authority, the Home Office body which deals with human trafficking claims, did not, in refusing to investigate a claim, breach the procedural obligations of Article 4 ECHR, the Court of Appeal ruled.

The Respondent claimed to have been trafficked into Russia from Vietnam where he worked in slave labour conditions, and then to the UK. The Competent Authority decided, after receiving relevant evidence, that there was no credible suspicion that he was trafficked. The decision of the High Court was that the decision was flawed because it did not follow the procedure laid out in the UN Anti-Trafficking Convention, which the judge took as “persuasive evidence that there had been a breach of the positive investigative obligation under article 4 ECHR.”

The problem, it was accepted by both parties, was that there was no duty under Article 4 ECHR and in the Strasbourg Court’s decision in Rantsev to investigate human trafficking abroad. Furthermore, Rantsev does not import the procedural obligations from the Anti-Trafficking Convention into Article 4 jurisprudence.

34. 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.”

This argument had not been put forward to the High Court. Therefore the Court of Appeal concluded that the judge erred, understandably, in her conclusion that there was a breach of the procedural obligations under Article 4 ECHR, and so the declaration was set aside.

Unfortunately between the two hearings the Respondent disappeared. This meant that a fresh decision on his application to be recognised as a victim of human trafficking could not be remade.

37.The respondent’s disappearance has deprived the Competent Authority and the respondent himself of a fresh decision.

One conclusion from this is the stark difference in power between international law which is incorporated (at the moment) in the UK’s legal system, such as EU law or the provisions in the Human Rights Act, and international law such as the Anti-Trafficking Convention, which is not. This has rendered the procedural obligations in that Convention of little use in this case. If the Human Rights Act is repealed, that will cause a similar weakening of the obligations of Government bodies to respect the human rights of those whose applications they have responsibility for. It is difficult to trust that they will respect them of their own accord.

Source: Secretary of State for the Home Department v Minh [2016] EWCA Civ 565 (20 June 2016)

Paul Erdunast
Paul Erdunast LLM student at Cambridge University. Formerly a full-time Education and Community Care Paralegal at Just for Kids Law, Intern at Hackney Community Law Centre and Legal Caseworker at the AIRE Centre. GDL graduate from City University. Previously studied Classics at Worcester College, Oxford. Interested in immigration, asylum and refugee law and policy.

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