The disappearance of hundreds of asylum seeking children out of Home Office run hotels is an issue of acute national concern. After the Observer reported on 21 January 2023 that “[d]ozens of asylum-seeking children ha[d] been kidnapped by gangs from a Brighton hotel run by the Home Office in a pattern apparently being repeated across the south coast”, Immigration Minister Robert Jenrick informed the House of Commons that 440 children had gone missing from six hotels since July 2021. Some had been found but 200 remained missing. On 18 February the Observer further reported that children taken from Home Office hotels in Sussex had been found in 18 different police areas. On 26 January over 100 charities wrote to the Prime Minister to request an end to the “unlawful and harmful” practice of placing asylum seeking children in hotels prior to their transfer to local authority care. The charities demanded an urgent independent inquiry into the scandal. 

There can be little dispute that the majority, if not all, of these children have been subject to human trafficking within the meaning of the European Convention against Trafficking in Human Beings (“ECAT”), as prohibited by Article 4 of the European Convention on Human Rights. Where children are concerned, only the act and purpose requirements of Article 4(a) ECAT require to be satisfied in order for trafficking to be made out. It is sufficient that children are recruited, transported, transferred, harboured or received, for the purpose of exploitation. There is no requirement, as for adult victims, for coercive or deceptive means to be made out (Article 4(c)). Children cannot consent to being trafficked.

Article 4 ECHR prohibits slavery, servitude, forced or compulsory labour (“SSFCL”) and human trafficking. It enshrines one of the basic values of the democratic societies of the Council of Europe. As the Grand Chamber of the ECtHR set out in SM v Croatia (2021) 72 EHRR 1 [306], like those under its unqualified cousins Articles 2 and 3, the positive obligations under Article 4 ECHR are divided into three distinct duties:

(i) to put in place a legislative and administrative framework to prohibit and punish SSFCL and trafficking, including acts committed by parties; 

(ii) in certain circumstances, to take operational measures to protect victims, or potential victims, of SSFCL and trafficking from the acts of private parties; and

(iii) a procedural obligation to investigate situations of potential SSFCL and trafficking, including where committed by private parties.

As case law on the positive duties under Article 4 ECHR is considerably less well developed than under Articles 2 (right to life) and 3 (prohibition of torture, inhuman and degrading treatment), the ECtHR and domestic courts incorporate principles from the latter into the former. The Grand Chamber in SM stated that “the converging principles of Articles 2 and 3 inform… the specific content of the procedural obligation under Article 4 of the Convention” [311]. The principle of convergence was recognised domestically with regard to the operational duty to protect victims of trafficking by the Court of Appeal in R (TDT) v SSHD [2018] EWCA Civ 1395, where Underhill LJ accepted that broadly similar principles should apply to the meaning of the phrase “real and immediate risk” as in the Article 2 case law [44-46].

The Enhanced Investigative Duty

It has long been established that the procedural duty under Articles 2 and 3 includes not just a general duty of investigation of individual offences, but also, where there has been an arguable breach by state agents of the operational or systems duties, an enhanced duty to conduct an independent state investigation – see e.g. R (Morahan) v West London Assistant Coroner (DC), [2021] EWHC 1603 (Admin). 

In England and Wales the enhanced duty may be satisfied through a public inquiry (although the Article 2 duty is most commonly satisfied through inquests). The Zahid Mubarek, and Brook House Inquiries, for instance, were established following judicial reviews in respect of compliance with the Article 2 and 3 enhanced duties respectively (see R (on the application of Amin) v Secretary of State for Home Dept [2003] UKHL 51, and MA, BB v Secretary of State for the Home Department [2019] EWHC 1523 (Admin)).

Although no Article 4 case to date has examined in detail this form of procedural duty, the ‘Jordan Criteria’ from Jordan v United Kingdom were first adopted by the ECtHR as applying to Article 4 in its landmark decision in Rantsev v Cyprus and Russia ([288], citing Edwards v United Kingdom). The criteria provide the established framework for determining whether an investigation is Convention compliant:

a. The authorities must act of their own motion;

b. The investigation must be effective or adequate (including being independent and capable of leading to the identification and punishment of those responsible for the death);

c. The investigation must be brought promptly and with reasonable expedition;

d. The must be a sufficient element of public scrutiny to secure accountability in practice as well as theory;

e. In all cases the next of kin must be involved to the extent necessary to safeguard their legitimate interests. 

The Engagement of the Enhanced Duty

The enhanced duty is parasitic. It is engaged only if there is an arguable case that the state has breached one or more the substantive duties to protect life – Morahan [30(3)]. “Arguable” is a low threshold, and means anything more than fanciful. However, there must be a “credible suggestion” that the state has breached its obligations R (Maguire) v Blackpool and Fylde Senior Coroner [2020] EWCA Civ 738, which must be advanced on a “real evidential basis” (Morahan at [75]). 

There can be little doubt that the low threshold for an arguable breach of the operational and/or systems duties towards trafficking victims has been reached in relation to (at the very least) a large proportion of the hotels cases. The operational duty to take reasonable steps to protect potential victims of trafficking arises where there is a credible suspicion that a person is at real and immediate risk of being trafficked – Rantsev [286]. In TDT the Court of Appeal held that the child Claimant’s status within a group for whom there was a high incidence of trafficking (young Vietnamese males), combined with his own account which fitted that pattern, was sufficient to cross the “relatively low threshold” [38] of a credible suspicion that he was at real and immediate risk of re-trafficking if released from immigration detention. Lord Justice Underhill emphasised that if there were clear statistical evidence that a very high proportion of a class of individuals entering the UK were trafficked, he could not see why that in itself would not give rise to a credible suspicion that an individual arriving from that class had been trafficked. The figures provided by Robert Jenrick to Parliament indicate that around 10% of unaccompanied children accommodated in six hotels have gone missing since July. The Observer’s most recent report raised concerns in relation to Afghan children in particular. If there were reasonable grounds to suspect these children would be at immediate risk of trafficking when accommodated, the mass disappearances give rise to a prima facie breach of the duty to protect. 

The facts of the disappearances from Home Office hotels are also likely to give rise to an arguable breach of the duty to put in place systems which protect victims of trafficking (the framework duty). The charities’ letter emphasised the lack of legal basis for placing children in Home Office hotels. It constitutes a significant departure from the existing framework of guidance and the Children Act 1989. It was supposed only to be a temporary measure but has persisted for around 18 months. Indeed, the Government itself appears to accept that there is a systemic problem with respect of the transfer of children to local authority care. On 24 January Home Office Minister Simon Murray told the House of Lords that one issue was the Home Office has no power to detain the children in the hotels. Last week, to the anger of children’s charities it was reported that the Home Office intends to table urgent legislation to give itself legal parental responsibility over children, and that it will continue the practice of housing them in hotels. This would be an unprecedented change in the national child protection framework. But these issues are not unprecedented. The trafficking of unaccompanied children arriving in the UK is an issue of long-standing concern of which the Home Office should be well aware – indeed it was the subject matter of TDT (in that case on release from immigration detention). The proposed urgent legislation appears to be a kneejerk response to a major systemic breach of the state’s Article 4 duties which has been subject to no independent public scrutiny. 

It is no exaggeration in the face of these facts to say the arguable Convention breach flows from the nature of the factual allegations themselves. Under Article 2 there are categories of case (for example self-inflicted deaths in custody) in which the investigative duty will be triggered automatically. That is because such deaths in and of themselves give rise to reasonable suspicion of state culpability – Morahan [100]. The Convention is particularly concerned to protect the rights and welfare of children, and those in the care of the state, including from the acts of third parties – see E v UK (2002) 36 EHRR 519 at [88]. The mass trafficking of children from state run hotels should automatically trigger a duty to investigate. 

It should be noted that there may also be arguable breaches of Article 3 ECHR duties in the present cases. Article 3 may be breached when the authorities have failed to use their powers to take action to protect children from the risk of serious abuse or ill-treatment about which the authorities knew or ought to have known (E v UK). However, it is not necessary for present purposes to address Article 3 in detail because the Article 4 case is so strong. 

Discharging the Duty 

A judicial public inquiry or investigation akin to an inquest is of course not required in respect of every arguable Convention breach. In appropriate cases the duty can be satisfied by a criminal investigation and trial (contrast e.g. R (Skelton) v West Sussex Senior Coroner [2020] EWHC 2813 (Admin), with Grice [2020] EWHC 3581 (Admin), two recent domestic violence homicide cases). In some cases an issue may arise as to whether independent investigations conducted in private may satisfy the duty. The question is whether state investigations as a whole collectively satisfy the procedural duty by complying with the Jordan criteria. It is axiomatic that the question whether the duty has been discharged must be answered on the specific facts and circumstances of each case. The scope and intensity of the duty and the form of investigation required varies according to the specific circumstances – Jordan [105], R (Khan) v Secretary of State for Health [2003] EWCA Civ 1129 at [67]. 

At the time of writing no independent inquiry has been announced by the Government, whether public or private. But given the scale and gravity of the scandal, it is tolerably clear, even at this early stage, that only a judicial inquiry with the power to call witnesses and hear evidence is likely to be sufficient to discharge the investigative duty. Even if there are widespread criminal trials of perpetrators of child trafficking from hotels (a huge ‘if’), the subject matter of those trials is never going to be the alleged state operational and systems failures to protect victims. The sheer numbers of missing children involved is a factor that calls for the highest level of public scrutiny. In Edwards a long independent investigation conducted by Queen’s Counsel into the killing of a prisoner by his mentally ill cellmate was held to be inadequate to satisfy Article 2 as it was held in private, with no power to obtain all relevant evidence or to compel key witnesses. The fact that the family were not represented and were unable to put any questions to witnesses contributed to the finding that they were not involved in the procedure to the extent necessary to safeguard their interests [78-79]. Holding the inquiry in private did not provide the requisite level of public scrutiny given the vulnerability of the deceased and the significant “public interest attaching to the issues thrown up by the case” [82-84]. Those factors diminished the effectiveness of the inquiry and failed to achieve the purposes of the Convention.

Enforcing the Duty 

The investigative duty may be enforced by way of judicial review proceedings. But one crucial question remains: who represents the interests of these children? As set out above, a key factor in determining the scope and requirements of the investigative duty is the extent to which families’ and victims’ interests can be legitimately protected. Judicial review proceedings claiming the state is in breach of its Article 4 investigative duty can only be brought by persons with victim status under the Convention, in accordance with section 7(1) of the Human Rights Act 1998. Of course a trafficked child who has been safely traced and safeguarded could bring proceedings. But fear of reprisals and vulnerability may militate against such an action, and it is an unsatisfactory system that puts the onus on individual exploited children to instigate a satisfactory inquiry. 

One answer to this is that it is a basic principle of the procedural duty that the state must act of its own motion. It ill behoves the state to rely on children to instigate their own inquiry. No investigation whatsoever into state failings has been announced yet, which – given the gravity of the alleged convention breaches – puts the state in flagrant breach of Article 4. 

An alternative answer may lie in the flexibility of the concept of victim status under Article 34 of the Convention. In cases where the primary victim of an alleged Convention breach has died or disappeared Strasbourg accepts that “the person with the requisite legal interest as next of kin” may bring proceedings as an indirect victim. The Home Secretary is under a statutory duty to trace unaccompanied child asylum seekers’ families in order to protect their best interests under regulation 6 of the Asylum Seekers (Reception Conditions) Regulations 2005. If parents can be located, they could enforce the duty. 

However, it is submitted that where a child is missing as a result of arguable human trafficking from state care, and the Home Office accepts there is an issue as to who has ultimate responsibility for that child, the victim requirement should be applied with sufficient flexibility to allow a body acting in loco parentis to bring an action. Local authorities, who have duties to accommodate, safeguard and promote the welfare of unaccompanied asylum seeking children under sections 17 and 20 of the Children Act 1989, would fall into such a category, as may the Official Solicitor. In certain cases Strasbourg has granted NGOs permission to bring proceedings, and it may be that an NGO with sufficient proximity to a specific migrant child’s interests would be in a position to bring an action. In certain cases the ECtHR has been persuaded to continue proceedings even in the absence of next of kin wishing to continue “where the issues transcended the interests of the applicant and raised an important question of public interest relevant to human rights standards in Contracting States” – Karner v Austria, App No.40016/98, ECHR 2003-IX. The extension of victim status in next of kin cases is “because of the particular situation governed by the nature of the violation alleged and considerations of the effective implementation of one of the most fundamental provisions in the Convention system”. That principle applies here. The Convention, of course, must be interpreted so as to make its rights practical and effective. 

In Amin Lord Bingham said the purposes of the investigative duty are clear. They are “to ensure so far as possible that the full facts are brought to light; that culpable and discreditable conduct is exposed and brought to public notice; that suspicion of deliberate wrongdoing (if unjustified) is allayed; that dangerous practices and procedures are rectified; and that those who have lost their relative may at least have the satisfaction of knowing that lessons [are] learned…” [31]. These concerns apply with equal force to trafficked children as to deaths in custody. The State is therefore under a duty to hold an urgent independent investigation into the disappearance of these vulnerable children from its care.

I am grateful to Michael Gordon and Paul Scott for comments on a previous draft. Any errors are of course my own.

James Robottom is a barrister at Matrix Chambers specialising in public law, human rights, tort and criminal law, and a PhD candidate at King’s College London.

(Suggested citation: J. Robottom, ‘The State’s Legal Duty to Hold an Independent Inquiry into the Mass Disappearance of Asylum Seeking Children in its Care’, U.K. Const. L. Blog (23rd February 2023) (available at https://ukconstitutionallaw.org/))