The Home Office has conceded an important judicial review claim brought by a survivor of trafficking who had been forced at gunpoint to pilot a small boat across the Channel.

The concessions made in this claim for judicial review offer a foothold for challenging the prosecution of people who arrive on small boats, many of whom are victims of trafficking, torture, and other serious harm.

Facts of the case

Upon arrival in the UK, KD, a young man from South Sudan, claimed asylum and informed the Home Office that he had been forced at gunpoint to drive a small boat across the Channel.

Despite this clear indicator of trafficking, no referral was made to the National Referral Mechanism, the framework through which potential victims of trafficking and modern slavery are formally identified and given access to support. Instead, KD was prosecuted for illegal arrival (section 24(D1) of the Immigration Act 1971) and for facilitating the arrival of others (section 25 of the 1971 Act). The charge of facilitation was subsequently dropped. KD was sentenced for illegal arrival to eight months in prison.

After his release from prison, KD brought judicial review proceedings challenging the Home Office’s practice of pursuing criminal charges and prosecutions against people arriving on small boats for immigration offences of illegal arrival. This was especially where they are seen to have piloted the boat, and for doing so without conducting effective investigations into credible suspicions of human trafficking for criminal exploitation.

Outcome

The claim for judicial review has now been settled by consent with the Home Office conceding that the intake unit should have inquired further into KD’s account that he was forced at gunpoint to pilot the dinghy, and should have referred KD (with his consent) into the National Referral Mechanism. It was also accepted that the intake unit failed to provide the relevant information to the investigations team within Immigration Enforcement who refer small boat pilots for prosecution.

Therefore, the Home Office should have considered KD’s account and referred him into the National Referral Mechanism before deciding whether to charge him under sections 24(D1) and/or 25 1971 Act. As part of the settlement, the Home Secretary also agreed to review the referral form used when deciding whether to refer someone for criminal investigation and prosecution, with a view to ensuring greater protection for trafficking survivors going forward.

Commentary

Although survivors of trafficking are not necessarily immune from prosecution, the paramount importance of victim identification is recognised in both domestic case law and that of the European Court of Human Rights, even where a person has or appears to have committed a criminal offence. However, it is clear in the case of small boat arrivals that potential victims of trafficking are regularly being convicted of illegal arrival and imprisoned without ever being assessed as a victim of trafficking, or having the circumstances of their potential trafficking and the link between this and their alleged offence considered.

Importantly, a trafficking defence can be raised in respect of certain offences with which small boat arrivals are commonly prosecuted, including those within section 24 of the 1971 Act (illegal entry, illegal arrival and endangering life at sea). The offence of facilitation under section 25 of the 1971 Act is excluded from the trafficking defence. However, victim status may still bear directly on whether there is sufficient evidence to bring a prosecution and whether such a prosecution may be in the public interest.

Unfortunately, our research on the prosecutions of small boat arrivals has found that criminal solicitors do not routinely advise clients charged with illegal arrival of the availability of the modern slavery defence under section 45 of the Modern Slavery Act, even in cases, like KD, where there are clear indicators of trafficking such as being forced at gunpoint to steer a small boat across the Channel.

The European Court of Human Rights made clear in V.C.L. and A.N. v. the United Kingdom, [2021] ECHR 77587/12 and 74603/12 that prosecuting a potential victim of trafficking without an adequate assessment of their victim status can breach Article 4 of the European Convention on Human Rights. Importantly, the court found that:

given that an individual’s status as a victim of trafficking may affect whether there is sufficient evidence to prosecute and whether it is in the public interest to do so, any decision on whether or not to prosecute a potential victim of trafficking should – insofar as possible – only be taken once a trafficking assessment has been made by a qualified person’ (paragraph 161).

Where there are credible indicators of trafficking, the state must therefore investigate before – not after – prosecuting the person concerned. The police, the CPS and the Home Office all have positive duties in this regard.

Conclusion

KD has now received a positive conclusive grounds decision which concludes that his experience of being forced to drive a small boat at gunpoint across the Channel did amount to human trafficking.

His case and the ongoing prosecution of small boat pilots underline the need for a more robust and consistent application of the UK’s modern slavery framework to prevent other survivors of trafficking from being wrongly treated as criminals in circumstances where safeguarding and protection should have come first.

This article was co-authored with Dr Vicky Taylor and Francesca Parkes.