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Reported Case

High Court declares Home Office discretionary leave policy for victims of trafficking unlawful (3 December 2020)

Date: 03/12/2020
Duncan Lewis, Reported Case Solicitors, High Court declares Home Office discretionary leave policy for victims of trafficking unlawful

In a judgment handed down on 3 December 2020, Mr Justice Mostyn has declared that the Home Office policy on discretionary leave 1 as applied to victims of trafficking is unlawful, in that it fails to implement the UK’s obligation to protect victims of trafficking in the National Referral Mechanism during the identification process. The obligation not to remove individuals from the territory following their first stage identification (the ‘reasonable grounds’ decision) while they awaited the second stage of the identification process, (the ‘conclusive grounds’ decision) was not fulfilled if applicants receive no formal recognition of their leave to remain during the process. As per Mostyn J at paragraph 48, ‘Suffering such a person to remain as an overstayer, or as an illegal immigration, does not fulfil the obligation.’ He directed the Secretary of State to ‘formulate a policy that grants such persons interim discretionary leave on such terms and conditions as are appropriate both to their existing leave positions and to the likely delay that they will face.’

The Claimant in this case was a New Zealand national who had entered the UK on a Tier 5 Mobility visa entitling her to work. After being forced into sexual exploitation, she entered the National Referral Mechanism2, the mechanism by which the Home Office, through the Single Competent Authority, operates the identification mechanism for victims of trafficking and modern slavery for non-UK nationals. At that point she still had a year to run on her visa. Initially, she received a negative reasonable grounds’ decision but this was overturned. Her visa ran out in September 2019 before she had received a conclusive grounds’ decision but requests that she be given continuing permission to work while her identification as a victim of trafficking and modern slavery was completed were refused. She had to stop working for a trafficking support organisation and has remained in limbo ever since, reliant on payments from the state, while she awaits a decision on her application for discretionary leave. An application was initially made in December 2019, but despite the Claimant’s conclusive recognition as a victim of trafficking/ modern slavery no decision on leave to remain has yet been made.

As a result, the Claimant was thrust into the ‘hostile environment’, where she, as the judge described ‘as an overstayer, is branded a criminal (although no one has seriously suggested she would actually be prosecuted), deprived of access to basic services, unemployed, dehumanised and penalised. She has filed some moving evidence describing her sense of failure and emotional isolation since she has been deprived of the opportunity to work.’

The Court considered that many of the issues resulted from the delays in decision-making by the Home Office Competent Authority and that the situation had considerably worsened since the last time the matter was examined by the High Court.3 According to Home Office figures, the average mean number of days to reach conclusive grounds’ decision on a trafficking referral had increased to 462 days, ie 15 months.4 No figures were available for the average time lag between a conclusive grounds’ decision and a decision on discretionary leave although the Claimant has now been waiting a further 211 days. By way of contrast, as noted by the judge at paragraph 22, the policy which has been adopted is that a conclusive grounds decision should be made as soon as possible 45 days after the reasonable grounds decision and a decision on discretion leave should be made at the same time or as soon as possible thereafter.

Duncan Lewis Solicitors, who represented the Claimant said, ‘This case highlights, once again, the impact of the ‘hostile environment’ on vulnerable individuals. People who enter the UK legitimately can so easily be forced into the position where they are deprived of basic civil liberties through failures in policy-making and delayed decision-making. So many organisations provided evidence in this case about the impact of delay and refusal of right to work on individuals coming forward for identification as victims of slavery and the damage to their recovery from their experiences. The UK, through anti-slavery legislation and ratification of international conventions, has committed itself to the protection of victims as well as the prevention of trafficking and modern slavery but Home Office policy, as currently implemented, fails to deliver this.’
Although the Claimant is actively assisting the police with their investigation, she still has not formal leave to remain in the UK. It is hoped that as a result of this judgment, this situation will be swiftly rectified.

The Claimant was represented by Duncan Lewis Solicitors: civil liberties and human rights director, Zofia Duszynska, trainee solicitor, Susan Fellows, and caseworker, Shilpa Caute, instructing Amanda Weston QC and Miranda Butler of Garden Court Chambers.

The Council of Europe Convention on Action against Trafficking in Human Beings (“ECAT”) was signed in Warsaw on 16 May 2005. Its paramount objectives, as stated in its recitals, are respect for victims’ rights; protection of victims; and action to combat trafficking. In a similar vein, Article 1 provides that the purposes of the Convention are (a) to prevent and combat trafficking in human beings and (b) to protect the human rights of the victims of trafficking and to design a comprehensive framework for the protection and assistance of victims and witnesses.

Subsequently, the UK enacted the Modern Slavery Act in 2015, which states at section 49 that it must issue statutory guidance on its interpretation which takes into account the international requirements set out in the Convention. The latest version of that guidance (version 1.02) was re-issued in August 2020.

1 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/926118/dl-for-victims-of-modern-slavery-v3.0-gov-uk.pdf
2 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/896033/July_2020_-_Statutory_Guidance_under_the_Modern_Slavery_Act_2015_v1.01.pdf
3 https://www.bailii.org/ew/cases/EWHC/Admin/2019/148.html
4 www.gov.uk/government/publications/modern-slavery-national-referral-mechanism-and-duty-to-notify-


Find full details of this case on Bailii’s website here.
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