The basis of claims against the state
The state has a duty to protect victims of trafficking under Article 4 of the Human Rights Convention. Claims against the state usually arise when this duty has not been met. Case law has established that human trafficking, within the meaning of Article 3(a) of the Palermo Protocol and Article 4(a) of the Anti-Trafficking Convention, falls within the scope of Article 4 of the Human Rights Convention – prohibition of slavery and forced labour
Article 3 (torture, inhuman or degrading treatment) and / or Article 8 (right to respect for family and private life) rights of the victim may also have been infringed.
The leading case is Rantsev v. Cyprus and Russia, no. 25965/04, ECHR 2010. Article 4 of the Convention may, in certain circumstances, require a state to take steps to protect victims, or potential victims, of treatment that breaches that Article . In order for the state to be required to act, it must be demonstrated that the state authorities were aware, or ought to have been aware, of circumstances giving rise to a credible suspicion that an identified individual had been, or was at real and immediate risk of being subjected to treatment in breach of Article 4 of the Convention. In that case, there will be a violation of Article 4 where the authorities fail to take appropriate measures within the scope of their powers to remove the individual from that situation or risk.
The European Court of Human Rights has held that the range of safeguards set out in national legislation must be adequate to ensure the practical and effective protection of the rights of victims or potential victims of trafficking. It, accordingly, considered that a state’s immigration rules must address relevant concerns relating to encouragement, facilitation or tolerance of trafficking. If a victim can establish that the state failed in its positive duties under Article 4 owed to victims of trafficking, then s/he may recover compensation from the state.
As a result, many of these cases have been brought. For example, for the failure by the Home Office to comply with its own entry clearance policies designed to protect overseas domestic workers (a group who are specifically recognised as being at risk of trafficking). Other cases may be founded on unlawful imprisonment or a failure to take protective action. You should consider whether at any time a victim of trafficking came to the attention of the authorities, there was a failure to protect. This an area of law which is ripe for development, as understanding of the state’s duty to victims grows.
Legal help matters starts for trafficking compensation claims are not available for claims against the state. Providers must use public law matter starts if they have them. However, providers may apply for a legal aid certificate to bring an Article 4 claim against the state.
Claims proceed in the High or County Court, not the Admin Court. It is important to remember that these claims, although involving public law considerations, are not claims for judicial review These are claims for compensation brought by a victim of trafficking against another legal person – who is the state, and hence subject to the duties under the Convention.
Time limits and protective proceedings
Human Rights claims are subject to a one year limitation period. However, in many cases limitation periods are long expired before a victim comes in contact with a legal adviser. For instance, there may have been a failure at entry clearance, following which the victim was held in a trafficking situation for many years.
While some argue that time limits in human rights cases are somewhat more flexible than in other jurisdictions, the courts are unlikely to be flexible if a victim has delayed once they have accessed legal advice. One difficulty is that it can take a very long time – often many months – to obtain a legal aid certificate for these claims.
One strategy is to issue protective proceedings under CPR 7.5. In protective proceedings, once the N1 claim form is filed at the court, the claimant has four months to file and serve the claim form and Particulars of Claim. Filing of protective proceedings preserves the client’s position as to time limits, while giving the provider and client four months to obtain legal aid, consider the merits of the claim and comply with the pre-action protocol.
In practice, such are the delays at the Legal Aid Agency, four months may prove insufficient. It may be advisable to apply for an extension to the time limit (by consent if possible).
Running Article 4 claims
You will need a good working knowledge of the Civil Procedure Rules and the High or County Court jurisdiction to run such claims.
As the state will usually be represented by the Government Legal Department, the progress of litigation may be very different to that against a trafficker, who may be unrepresented or represented by poor quality lawyers.
A trafficker defending litigation is likely to concentrate on their own fate; however, the state may be concerned at the setting of a precedent. This may lead to Article 4 claim settling more easily, but each claim turns on its merits and its facts.
One common tactic by the state, particularly where there are time limit issues, is to apply for a strike out hearing on the time limit point at an early stage.
Effect on the client
Clients may be fearful of bringing a claim against the Home Office if they have an immigration application. They may also fear bringing a claim against the police because of a fear of the police in general, perhaps one that has been stoked by their traffickers. You could advise the client that bringing a claim against the state may put them in a more advantageous immigration position and could form the basis of a successful application for a residence permit.
Other clients may be more willing to enter into litigation against the state than they would be against their traffickers. A further advantage of a claim against the state is that there are few concerns about enforcement.
In the normal course of events the traffickers would not be involved in a claim against the state. However, you should be aware that it is possible for a state defendant to seek to add a trafficker as a Part 20 defendant – a party against whom the state would seek to recover any compensation awarded to the victim. Care would need to be taken, and the same protocols followed concerning the client’s address and personal details, if there is any question of a trafficker being joined to such litigation.
You should also discuss with the client whether they will have to give evidence in an Article 4 claim. Much will depend on whether there are contested facts, for instance what happened at an interview or a police station. Further, the defendant may dispute the client’s trafficking status. If the client is not a victim of trafficking it is very unlikely they will succeed in an Article 4 claim as the state’s positive duty will not be engaged. Be aware that in Article 4 litigation, the Home Office may seek to dispute the status of a victim of trafficking who has been conclusively recognised as a victim of trafficking by the Home Office itself.
Consideration should be given to quantum at an early stage as it may be worth joining claims together to reduce costs. For legal aid purposes, it may be possible to argue that the matter is one of significant wider public interest, thus amending the costs benefit rules.
You should also consider the possibility of a personal injury claim and look to comply with the pre-action protocol in respect of personal injury and obtain medical reports at an early stage.