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HYL v SSHD (CO/2347/2020) – challenging the SSHD’s refusal to consider eligibility for ECAT leave for victim of modern slavery (14 October 2020)

Date: 14/10/2020
Duncan Lewis, Main Solicitors, HYL v SSHD (CO/2347/2020) – challenging the SSHD’s refusal to consider eligibility for ECAT leave for victim of modern slavery

Our client challenged the SSHD’s refusal to consider her eligibility for ECAT (Council of Europe Convention on Action against Trafficking in Human Beings) leave as a victim of modern slavery. Whilst a decision on her asylum claim was pending the SSHD applied the ‘blanket scheduling rule’ in our client’s case which was amended by the order in JP and BS v SSHD [2020] 1 WLR 918, which had the effect of quashing it.


Background

Our client, a Chinese national, was trafficked to the UK in June 2013 for purposes of sexual exploitation, held captive for six months, beaten, and repeatedly raped by numerous men. Our client escaped in December 2013 and lived as an undocumented migrant for four years until April 2019, when she was taken into immigration detention, where she claimed asylum and was identified as a potential trafficking victim and later released into safe house accommodation.

On 15 April 2020 our client received a positive Conclusive Grounds decision. On the same day the SSHD refused to consider our client’s eligibility of ECAT leave until her asylum claim had been determined, stating in the decision letter that “It is noted that your client currently has an outstanding application to remain in the UK. It is not therefore necessary to consider eligibility for discretionary leave as a victim of modern slavery at this stage.” This was despite Murray J, in JP and BS v SSHD [2020] 1 WLR 918 quashing the SSHD’s policy, to not determine a victim’s eligibility for ECAT leave, until the asylum claim had been determined (“scheduling rule”), as it was incompatible with ECAT and unjustifiably discriminated against victims of trafficking who claimed asylum.

As a result of our client’s experiences she developed Post-Traumatic Stress Disorder, Generalised Anxiety Disorder and Major Depressive Order. Expert evidence showed that her psychological recovery was being impeded and her mental health was deteriorating due to the ongoing threat of removal to China and fear of re-exploitation on return, brought about by her limbo state.

The SSHD conceded that she had unlawfully refused to consider whether to grant our client discretionary leave as a confirmed victim of trafficking, pending a decision on her asylum claim, on the basis of her existing written policy, as amended by the order in JS and BS v SSHD [2020] 1 WLR 918, which had the effect of quashing the ‘blanket scheduling rule’. As a result of this, the SSHD had breached Article 14 European Convention on Human Rights.

The SSHD has now agreed to withdraw her decision to refuse to consider our client’s eligibility for ECAT leave and agreed to consider her entitlement. The SSHD has stated that they will soon be publishing amended guidance in respect to ECAT leave for survivors of victims of trafficking /modern slavery.

The SSHD has agreed to pay the Claimant damages for breaching her duties under Article 14 of ECHR. The SSHD has also agreed to pay the Claimant’s costs.


Representation

Our client is represented by Primisha Chudasama, Shalini Patel and Ahmed Aydeed from Duncan Lewis Solicitors and Chris Buttler and Zoe McCallum from Matrix Chambers acts as counsel.

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