[2025] UKUT 00092 (IAC)

By this ground, the applicant seeks to mount a collateral challenge to the earlier actions of the Competent Authority in referring the applicant’s modern slavery to the police. The Competent Authority referred the applicant’s 2020 county lines forced criminality to Essex Police, but in doing so did not expressly refer to the 2013 period of domestic servitude to the Metropolitan Police Service, and the focus of the correspondence was on the 2020 phase of the applicant’s modern slavery. Mr Buttler sought to make what he described as the “contextual submission” that that process breached the investigative duty mandated Article 4 of the ECHR, and that the Secretary of State was required to satisfy herself that the applicant’s stay was not required for that investigation prior to taking the 12 December decision. Since the investigative duty was incomplete, in Mr Buttler’s submission it was not possible for the Secretary of State lawfully to conclude that the applicant’s stay was not “necessary for the purpose of their cooperation with the competent authorities in investigation or criminal proceedings” for the purposes of Article 14(1)(b).

I reject this submission for the following reasons.

First, the CG decision was provided to Essex police (see page 364). The CG decision detailed both phases of modern slavery. That was sufficient. All relevant information was before a police force. It is not for the Competent Authority to micromanage the onward distribution of police business across different police forces, or seek to bypass any intra-police force process for the allocation of responsibility for cross-boundary criminal investigations.

Secondly, this submission seeks to impute to the Secretary of State the responsibility for investigating and prosecuting criminal offences, the constitutional responsibility for which lies elsewhere. See Secretary of State for the Home Department v Hoang Anh Minh [2016] EWCA Civ 656 at para. 38, per Burnett LJ:

“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.”

Hoang Anh Minh also made clear that the United Kingdom’s procedural obligations under Article 4 of the ECHR have not been assumed by a single public body (para. 39). I consider that this aspect of Mr Buttler’s submission seeks to confer on the Secretary of State precisely the broad, overall evaluation that Burnett LJ said does not rest with any single body, and relies on the Secretary of State assuming a constitutional role which lies elsewhere.

Thirdly, a failure by the Competent Authority to refer a matter to the police is unlikely give rise to a breach of the procedural limb of Article 4. This point was addressed in Hoang Anh Minh at para. 39:

“[The Competent Authority’s] 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.” (Emphasis added)

Moreover, there has been nothing to prevent the applicant’s legal team from raising this complaint directly with the relevant police force. Mr Buttler submitted that a victim of modern slavery cannot be expected to report the matter to the police him or herself, relying on Article 27(1) of the Convention. This submission cannot be sustained in light of the judgment of Burnett LJ, above, and an examination of the terms, aim and purpose of the Convention. The rationale behind Article 27(1) “is to avoid traffickers’ subjecting victims to pressure and threats in attempts to deter them from complaining to the authorities” (Explanatory Report, para. 277). Nothing in Article 27(1) entitles the applicant’s experienced and publicly-funded legal team to decline to refer a matter to the relevant police force in the event that they had concerns that a matter had not been investigated properly: see the extract from the judgment of Burnett LJ to which emphasis has been added above. It is not clear why the applicant’s legal team has not raised this or pursued this matter with what it considers to be the relevant police force.

Judicial review is a discretionary remedy. Applicants are expected to exhaust other avenues of redress before a court or tribunal will grant relief. The fact that this applicant’s legal team (1) had concerns about the scope of the police investigation, but (2) did not raise the matter with the relevant force itself is, in any event, fatal to this ground succeeding. There can be no actionable public law error in those circumstances such that it would be appropriate to grant permission for the claim to proceed.

I also note the police were plainly aware of the 2013 allegations at the time (see para. 9 of the decision of First-tier Tribunal Judge Wellesley-Cole at page 322). If the applicant considers that a 2013 police investigation was inadequate, or the response to the Competent Authority’s referral to Essex Police in 2021, responsibility for any failings by those bodies cannot be laid at the feet of the Secretary of State in a decision taken on 12 December 2022. Essex Police were (and remain) seized of the resulting police investigation, and has confirmed to the police that the applicant’s presence in the United Kingdom is not necessary to progress the investigation. Under the circumstances, it was not unlawful for the Secretary of State to conclude that the applicant’s stay was not necessary on Article 14(1)(b) grounds.

This ground is without merit.