Recent changes to the policy on granting leave to survivors of trafficking

This article sets out the recent changes to the policy on granting people leave to remain once they have received a positive conclusive grounds decision, which is the second and final stage of the trafficking identification process. As discussed previously, the position in relation to grants of leave made to people who have been identified as survivors of trafficking has been the cause of much confusion and distress and recent changes have not alleviated that.

On 11 July 2024 the Home Office announced a pause on all decisions on temporary permission to stay for victims of human trafficking or slavery (VTS) were paused, presumably because of the large number of pre action letters and judicial reviews the policy was subject to.

At the end of August, it was announced that decision making had resumed:

Updated guidance was then published in October, those changes are considered in further detail below.

Background

As a reminder, a person who has been recognised as a survivor of trafficking is entitled to a renewable residence permit (i.e. a grant of leave) in accordance with article 14 of Council of Europe Convention on Action Against Trafficking in Human Beings (ECAT) in one, or both, of the following situations:

• the competent authority (decision making body) considers that their stay is necessary owing to their personal situation;
• the competent authority considers that their stay is necessary for the purpose of their co-operation with the competent authorities in investigation or criminal proceedings.

In the explanatory report to ECAT, it is made clear that an assessment of a survivor’s ‘personal situation’ for the purposes of granting a residence permit should take in “a range of situations, depending on whether it is the victim’s safety, state of health, family situation or some other factor which has to be taken into account”.

A move away from ECAT

However, in recent years the interpretation of ‘personal situation’ in the Home Office’s Modern Slavery Statutory Guidance has moved away from the description in the explanatory report, getting narrower with every iteration. This was particularly the case following the 30 January 2023 changes that were made to reflect section 65 of the Nationality and Borders Act 2022. It is now difficult to see how the approach taken is in line with article 14 of ECAT and as a result the policy has been subject to a number of legal challenges.

The latest changes

On 24 October 2024 version 4.0 of the policy was published, without any consultation with survivors or the anti-trafficking sector. The policy set out that:

This guidance amends general information and clarifies who is to be considered for a grant of VTS. This guidance clarifies the assessment to be undertaken by Competent Authority decision makers where victims are eligible for VTS to assist their physical or psychological recovery from their exploitation, and how to consider whether the required treatment is likely to be accessible in the country of return.

The most significant change to the policy was around the consideration of whether an individual who requires assistance to recover from any physical or psychological harm arising from their exploitation and if so whether they can get that assistance in their country of return.  The policy has been amended to reflect that:

the consideration of whether this need for assistance is capable of being met comprises a 2 part assessment of both the availability and the likely accessibility of treatment to the individual

On pages 22 to 25 of the policy a new section has been added providing decision makers with guidance on how to make an assessment of whether treatment is likely to be accessible on return. This includes a table entitled ‘The Accessibility of Treatment Decision-Making Framework’ which sets out a range of factors which make it ‘more likely’ or ‘less likely’ that treatment will be accessible. Factors to be taken into account include a person’s employment potential, support networks in place, transport availability, health and availability of treatment.

Conclusion

While this is an improvement on the previous policy, where no real consideration was given to how likely it was that a person would actually be able to engage in treatment, in my view the recent changes still do not go far enough and remain far too restrictive. The policy does not take into account the many nuances that may impact a survivor’s ability to engage in treatment, particularly any psychological barriers a person may face in accessing treatment or even if they are able to access treatment the effectiveness of it.

Given the extraordinarily low recognition rate by the immigration enforcement competent authority and the restrictions on grants of leave made in the last couple of years, it is very difficult for survivors to successfully move through the system to a place of safety and security (a grant of leave). This will likely have a wider impact on the UK’s ability to tackle trafficking and modern slavery, with little incentive for survivors to engage with the system.