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Seeking judicial review in relation to Secretary of State’s policy in relation to discretionary leave for victims of trafficking subject to a deportation order (14 December 2020)

Date: 14/12/2020
Duncan Lewis, Public Law Solicitors, Seeking judicial review in relation to Secretary of State’s policy in relation to discretionary leave for victims of trafficking subject to a deportation order

Duncan Lewis Solicitors represent two Claimants who have been granted permission to seek judicial review of the Secretary of State’s policy in relation to discretionary leave for victims of trafficking subject to a deportation order, and the failure to adopt and implement clear guidance to local authorities to ensure a durable solution is found for children in care and/or victims of child criminal exploitation. They are challenging the refusal of discretionary leave to remain in their individual cases and argue that as non-British children in care there has been a lack of adequate protection and a failure to regularise or secure the immigration status they were entitled to during their childhood.

Both Claimants arrived in the UK as very young children. They both suffered abuse and neglect at the hands of their families, and at 8 and 11 years old respectively they were taken into care by the local authority and placed under a full care order. Neither child held indefinite leave to remain, and in both cases the local authorities failed to take the appropriate steps to regularise their immigration status and/or secure British citizenship. Both Claimants were groomed into county lines gangs when very young. They had frequent missing episodes from home/school, during which they were sent to trap houses to sell drugs. They were both subjected to threats, violence and coercion, and the exploitation continued into young adulthood. By the time they were arrested and convicted of serious offences they had both attained majority and were processed under the statutory framework for automatic deportation. They were not identified as potential victims of trafficking whilst in the criminal justice system.

Neither Claimant had legal representation at the time the decision to deport was made, and neither Claimant appealed the decision at the time. Duncan Lewis Solicitors were instructed by the Claimants separately whilst they were serving their prison sentences in Feltham young offender institution (YOI). They were at this point referred to the National Referral Mechanism (NRM) and have both subsequently received positive conclusive grounds decisions, acknowledging that they were victims of child criminal exploitation, and that the exploitation continued until the time of committing their index offence leading to deportation proceedings.

The Claimants argue that there has been a failure by the state as ‘parent’ to children in care to properly regularise the Claimants’ immigration status and secure British citizenship, despite it being manifestly clear that their futures lay in the UK. There were further failures with respect to the safeguarding from harm and identification of the Claimants as victims of child criminal exploitation. The lack of a durable solution being found and implemented at an early stage has led to the Claimants now being subjected to the hostile environment and deportation. They are challenging the failure in their individual cases to grant discretionary leave and to resolve their immigration status at an earlier stage and the deportation orders. In addition, we are bringing two further grounds.

Firstly, the lawfulness and/or proportionality of the presumption in the discretionary leave (DL) policy for victims of modern slavery to refuse a residence permit to Foreign National Offenders who are victims of trafficking. The current policy says this with respect to granting leave to foreign national offenders:

Criminals or extremists should not normally benefit from leave on a discretionary basis because it is a Home Office priority to remove them from the UK. DL can only be granted with the authority of the grade 5 who must give authority for deportation not to be pursued. It may be justifiable to grant DL for 6 months initially to enable regular reviews.

There are no provisions within the policy for those whose criminality arises out of exploitation and modern day slavery. The policy does not provide any parameters for how a challenge to the presumption might be framed, or against what criteria such challenge is considered. We argue that this presumption is unlawful, disproportionate, and a breach of the United Kingdom’s obligations of Article 14(1) ECAT and Article 16 of the Trafficking Directive. We also argue that the policy is in conflict with the broader non-punishment principle enshrined in Article 26 ECAT and Article 8 of Directive 2011/36/EU.

Additionally, we are arguing that the Defendant’s failure to adopt, operate and publicise an adequate policy to provide durable solutions for children in care and/or victims of child criminal exploitation for those exploited as children or vulnerable young adults is discriminatory in relation to foreign children in care. It is also inconsistent with the continuing duties to care leavers under the Children Act 1989 and in breach of the protective obligations under ECAT, the Trafficking Directive and Article 4 and 14 ECHR and the Equality Act 2010.

Having been granted permission by Ms Justice Cutts, the claims will now proceed to a full hearing.



Representation

Maria Thomas and Ines Graca of the public law department at Duncan Lewis Solicitors. Counsel are Sonali Naik QC, Louise Hooper and Emma Fitzsimons of Garden Court Chambers.


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