Public Law Solicitors

Duncan Lewis has issued a challenge against the Secretary of State for the Home Department (‘SSHD’) on behalf of their client HVN. The challenge is in relation to the unlawful policy of refusing to grant leave to survivors of trafficking under the Discretionary Leave (DL) policy, version 10, (‘KTT leave’), where the individual has been convicted of an offence which has resulted in a deportation order being issued.

The version 10 policy intended to implement the judgement of EOG & KTT v Secretary of State for the Home Department [2022] EWCA Civ 307 (‘EOG & KTT v SSHD). The Court of Appeal in the case of EOG & KTT v SSHD, determined that the Home Office approach to applications for Modern Slavery Discretionary Leave was not in accordance with Article 14 (1)(a) of the European Convention on Actions against Trafficking (‘ECAT’) (which the policy was found to commit to implementing). Article 14 (1)(a) of ECAT requires States to consider whether the survivor’s “stay is necessary owing to their personal situation". The Court found that a confirmed survivor of trafficking, who has an outstanding asylum claim which is trafficking-related, requires a consideration of leave to remain in the UK because their ‘stay in the UK is necessary’, owing to their personal situation as a survivor of trafficking, in order to pursue their asylum claim.

However, the version 10 policy goes on to exclude those survivors of trafficking who are currently subject to deportation proceedings. Instead, they will be considered under Temporary Permission to Stay considerations for Victims of Human Trafficking or Slavery, Version 3.0 (‘VTS Guidance’). This is a much more restrictive set of circumstances in which survivors of trafficking will be entitled to leave, as follows:

• assist the person in their recovery from any physical or psychological harm arising from the relevant exploitation
• enable the person to seek compensation in respect of the relevant exploitation
• enable the person to co-operate with a public authority in connection with an investigation or criminal proceedings in respect of the relevant exploitation

The VTS Guidance removes the entitlement to leave where “stay is necessary owing to their personal situation” and therefore removes the possibility of survivors with a deport order being issued with so-called ‘KTT leave’. This demonstrates a clear failure by the SSHD to implement the judgement in EOG & KTT v SSHD, which was itself, a case were the Claimant had a deportation order. Furthermore, the SSHD accepted in EOG & KTT v SSHD, that the presence of a deportation order was not relevant to the grant of leave where necessary owing to their personal circumstances. Therefore, the SSHD’s version 10 policy and the extent to which it denies leave to those with a deportation order, is a knowing failure to implement the judgement in EOG & KTT v SSHD.

This can and has resulted in survivors of trafficking who have a conviction, which the SSHD has accepted as linked to their conviction through a Conclusive Grounds decision, being excluded from KTT leave. This means that despite the acceptance by the SSHD that individuals were forced into criminality by their traffickers and the fact that they have a protection claim outstanding, these individuals are being excluded from a grant of leave, which is necessary to consider this asylum claim purely because of the criminality they were trafficked into. These circumstances have arisen in the present case, which was issued on 22nd December 2023.

The Duncan Lewis legal team:

Ahmed Aydeed (Director)

Ahmed Aydeed, serving as a Director at Duncan Lewis, is known for his expertise in complex immigration, asylum, and human rights cases. With a strong focus on public law, Ahmed has been instrumental in leading high-profile legal challenges that have shaped UK immigration law. He is renowned for his dedication to protecting the rights of vulnerable individuals.
Contact: AhmedA@duncanlewis.com | 020 7275 2036

Sophie Chadd (Solicitor)

Sophie Chadd is a Solicitor at Duncan Lewis specialising in a range of legal areas including family law, immigration, and human rights. Known for her meticulous approach, Sophie has successfully represented clients in complex legal matters, demonstrating a strong commitment to achieving the best possible outcomes.
Contact: SophieC@duncanlewis.com | 020 3114 1130

Natalie Hawes (Caseworker)

Natalie Hawes is a dedicated caseworker at Duncan Lewis. She works closely with clients in immigration and asylum cases, providing thorough and compassionate support. Natalie's attention to detail and commitment to client care make her a valued member of the legal team.
Contact: NatalieH@duncanlewis.com | 020 3114 1109

Lucy Maxwell (Caseworker)

Lucy Maxwell, a caseworker at Duncan Lewis, is involved in a wide array of cases, particularly focusing on asylum and human rights issues. Her dedication to client welfare and her ability to handle complex cases with sensitivity and professionalism are hallmarks of her work.
Contact: LucyMa@duncanlewis.com | 020 3114 1158

Duncan Lewis Solicitors

Duncan Lewis’ award-winning public law team holds top tier rankings in the Legal 500 and Chambers directories and has been involved in high-profile cases such as the Rwanda challenge, Manston House, and the Brook House detention centre inquiry.