The Home Office’s new policy temporary permission to stay for victims of trafficking and slavery was published on 30 January 2023. It accompanies the new appendix to the Immigration Rules of the same name, which was published on 18 October 2022 and came into force on 30 January this year.

Who qualifies for permission to stay?

A confirmed victim of trafficking will now be eligible for leave to remain if they can demonstrate one of three things.

Recovery from any physical or psychological harm arising from the relevant exploitation

If an individual can demonstrate through evidence from a qualified medical professional that they need or are receiving treatment then they may be eligible for permission to stay. This remains the same as the previous policy. However, the new policy introduces the wording “arising from the relevant exploitation” meaning that it must now be made clear that the psychological harm arises from the specific incident of trafficking. This is a new hurdle and practitioners should ensure that medical evidence comments on this link.

The Nationality and Borders Act 2022 section 65(2)(a) to (c) also limits discretion to grant permission to stay in this scenario. If a person can get assistance in the country in which they are a national, then permission to stay will not be necessary. Objective evidence which counters this would be advisable.  

To seek compensation in respect of the relevant exploitation

The policy position is that in most countries it will be “relatively straightforward” for compensation claims to be pursued remotely. Where that is not the case, if a victim can demonstrate the need to be in the UK for the duration of the claim as well as demonstrate the strength of the claim, then they may have a good chance of being granted permission to stay.

Cooperation with a public authority

Either the victim or the police may request permission to stay to assist in investigations or prosecutions relating to their exploitation. It must be confirmed that it is necessary for the person to be physically present in the UK to cooperate with the investigation or prosecution. Again, if it is possible for this to happen remotely a grant of permission to stay will not be deemed necessary.

Cases involving children

One area that the new policy does provide clarity on is those cases involving children. The policy makes clear that when an application is made on behalf of a child victim or dependent child of a victim, the child must have their best interests taken as a primary consideration.

A more restrictive policy?

The new rules seem more restrictive than the previous iteration of the policy which allowed for wider discretion on personal circumstances warranting grants of permission to stay. In that iteration, the risk to a person of re-trafficking, could factor into consideration. It is absent from this policy.  

There is also no clarification regarding temporary leave being granted as a matter of course for those with a pending asylum claim. KTT, which was heard in the Court of Appeal, still remains an authority despite this seemingly contradictory new policy. Practitioners should still pursue challenge on the basis of KTT, for example where permission to stay has not been granted and an individual has a pending asylum claim.

The application

Anyone receiving a decision confirming they are a victim of trafficking will automatically be considered for discretionary leave and will usually be invited to submit supporting evidence.

The application will be decided upon a balance of probabilities: that it is more likely than not that the individual meets the requirements.

Leave will not normally be granted for more than 30 months, and often it will be shorter. For example, leave could be granted for the length of time it will take to complete a course of therapy. Short grants of leave to remain can be problematic, often it can take months for an individual to start to receive public benefits or access housing, by which time their leave may be near lapsing. There remains a discretion to grant indefinite leave to remain as a victim of trafficking.

Conditions of the permission to stay will include the right to work, study and access public benefits. Any renewal application should be made on form FLR(HRO).

Conclusion

It was hoped that the new policy would provide clarity around the circumstances for grants of permission to stay, ensure the UKs obligations under the Council of Europe Convention on Action against Trafficking in Human Beings are met, and deliver a fair and effective process. Unfortunately, the new policy seems to limit discretion and avoids tackling issues such as grants of permission to stay where someone has a pending asylum claim.