Briefing: how to request leave to remain for survivors of trafficking

This is a lengthy briefing providing practical advice on how to prepare a case to ensure your client has the best chance of being granted temporary permission to stay for victims of human trafficking or slavery (referred to as “VTS leave”). In this briefing I focus on grants based on assisting the person in their recovery from any physical or psychological harm as this is the most common reason.

This article is aimed at legal representatives and it is important to note that this work is covered by legal aid.

Evidential threshold

The previous iteration of the policy led to concerns being raised about the high evidential threshold that was expected of survivors and their legal representatives. Worryingly, the amendments of 24 October 2024 increased the evidential burden further by requiring that ‘a person should provide evidence from a registered healthcare professional’ whereas it used to be ‘may provide’.

The barriers to survivors accessing evidence have been set out time and time again and increasing this burden is likely to only lead to a higher number of refusals. This will place many survivors who do not have access to a quality legal aid representative or indeed an increasing number who do not have access to a legal representative at all at a distinct disadvantage. This sets the bar too high.

Process for requesting temporary permission to stay for victims of human trafficking or slavery

All survivors of trafficking who have received a positive conclusive grounds decision will automatically be considered for an initial grant of temporary permission to stay for victims of human trafficking or slavery. It is not necessary to make a formal application for a first time grant and there is no fee attached.

In practice, once a positive conclusive grounds decision is made, the decision maker will send a “current circumstances questionnaire” (CCQ) to gather the relevant information to make a decision. This should be returned to the competent authority as a separate document rather than in the body of an email.

In some instances these questionnaires are sent before the conclusive grounds decision is made but a VTS decision will only be made after a conclusive grounds decision is made and so in these cases a further questionnaire may be sent asking for updated information. This can be tedious but does allow for up to date information to be provided.

These questionnaires require a large amount of information and detailed supporting documents, particularly in relation to health. The details requested include; general personal information, dependent details, personal background (including employment history for the past 10 years, education and family and social connections in country of return), health (including GP details, any medical diagnosis, medication details), counselling, medical reports, support workers, police engagement and compensation claims.

Each section of the questionnaire gives further detail of the evidence that it anticipates being provided in support of the information, for example for the health section:

The CA requires evidence of any diagnosed medical conditions and evidence of any prescribed medications to be able to properly assess X’s current circumstances.

At least one of the following documentation is required to support this:

• A copy of X’s medical records
• A letter from X’s GP confirming the medical diagnosis and medication prescribed.
• A copy of X’s prescription dated within the last 3 months
• A psychological report or medical-legal report to confirm the medical diagnosis

**Please note that in addition to providing a copy of one of the above documents, X is required to provide written confirmation from a Medical Professional which clearly demonstrates how X’s medical condition/medication is linked to their Human Trafficking or Modern Slavery experience.**

Please confirm this information is attached: Yes / No  

If not attached, please confirm this will be submitted and provide a date this information can be expected: 

Do you have any health issues which restrict their ability to use public transportation? Yes / No

If ‘yes’ please provide details

Tip: it is rarely necessary to provide full copies of medical records, it is always preferable to get a specific letter from the client’s GP. If you are providing full medical records, or even excerpts it is always necessary to review them carefully with your client. Should there be any errors or information that needs clarifying this should be done either in a witness statement or in your own representations.

It is worth remembering that legal aid funding can pay for obtaining necessary evidence, including for people’s time to write opinions.

The questionnaire makes clear that it is the responsibility of the person/organisation completing the questionnaire to notify the competent authority of any relevant information or changes following completion, which should then be taken into account in the decision making. Since there is no timeframe for when a decision on leave will be made it is important to regularly check in with your client to see if there are any relevant changes in their circumstances. 

The format of these questionnaires does not allow for nuance and it would always be advisable to provide your own representations to accompany them which should set out in detail why your client requires leave to remain and explain the period of leave they require. It is fairly standard for short periods of leave of less than 12 months to be granted and detail should be provided as to why more long-term leave is usually necessary.

The questionnaire usually has to be returned within 14 days, although more recently I have seen deadlines of less than seven days being given. This rarely provides sufficient time to gather the evidence required, in a trauma informed manner, let alone obtain the supporting documents.

Of course it is advisable to begin preparation for the VTS decision from the outset of the case but evidence gathering needs to be balanced with the likelihood of evidence becoming out of date. There is no reason representations can not be made at the same time as making representations in support of the conclusive grounds decision and advocate for the two decisions to be made at the same time, although in reality I have never seen this be done. 

If it is apparent that an extension of time is required to provide the information/evidence, this should be requested at the earliest opportunity and details of how much longer is required and why should be provided. In my experience an inconsistent approach to extensions of time have been applied and therefore as much detail as possible should be provided in support.

Supporting evidence

There are currently three different strands under which a person can be granted temporary permission to stay for confirmed survivors of trafficking;

1. To assist the person in their recovery from any physical or psychological harm arising from their exploitation.
2. Enable the person to seek compensation if they are unable to pursue this remotely.
3. Enable the person to cooperate with authorities in connection with an investigation or criminal proceedings.

Irrespective of the strand(s) relevant to your client the approach to each will fundamentally be the same. Despite my views on the policy and the overly high evidential threshold, the best chance of a person being granted leave in line with the Home Office policy and practice is unfortunately through gathering specific evidence that can be said to squarely cover the point the Home Office asks for in the guidance and questionnaire.

Types of evidence

This article focuses on the first strand of recovery from any physical or psychological as it is (slightly) more straightforward to provide evidence for the second and third and this is a common area where survivors may have needs supporting a grant of leave.

For the other strands, it will be the case of obtaining documentary evidence that confirms that either compensation is being sought or that a person is engaging with the authorities. In the case of a person claiming compensation it will still be necessary to evidence why they need to remain in the UK for this, for example by showing the difficulties the person would face in continuing to engage with the process from their country of return.

Following the 24 October 2024 changes it is unclear the approach that will be taken to decision making in relation to a person’s recovery from physical or psychological harm. However given the increased evidential threshold it is probably safe to assume that the focus will remain on the evidence provided in support and will continue to be very and overly medically focussed.

Evidence confirming recovery needs

It will first be necessary to provide evidence that an individual has recovery needs that have arisen from their exploitation. In an ideal world the survivor’s account should be more than sufficient to address the recovery needs they have but unfortunately medical evidence will be expected. This could take the form of a letter from the individual’s GP or treating clinician, including their counsellor or therapist, if they are already engaged in treatment. 

It could also take the form of an excerpt from their GP records if this has been discussed during a consultation with the GP. Always talk to your client about evidence you plan to get and that you have received, to make sure they are happy with it and ensure you have asked any relevant questions about any new information.

Careful thought needs to be given to the instructions for this evidence. Ideally the evidence should outline any relevant diagnosis or symptoms as well as detailing a person’s treatment needs. If possible they should address how this is connected to their trafficking experience but a clinician may not feel able to say this with certainty if they have not worked with the individual for long, or if they have not had experience in writing an opinion like this before.

You can keep a request quite simple and put your questions to someone by email. The key is asking them to comment on the specific issues that meet the Home Office policy and questionnaire. Even if the person you are asking has not had much experience in giving an opinion like this before, they could still offer very helpful information they are comfortable to give about the person’s presentation in their work with them so far.

If you have not instructed someone to give an opinion like this before and need further guidance on specific questions you could ask, please reach out to other experienced practitioners who work with survivors of trafficking or contact ATLEU’s advice line for professionals which runs every Thursday.

As part of the current circumstances questionnaire decision makers will almost always ask for details of the expected duration and proposed end date of treatment. While it may be possible for some letters to detail this, some clinicians will not be able to provide this information, for good reason, and it may be necessary to push back on the Home Office on requests for firm treatment timings.

In my view caution should be exhibited when providing exact timings for when treatment will end as this will often lead to the period of leave being granted for that period only. I have seen examples of leave expiring the day after treatment was due to end. This approach fails to recognise that recovery is not linear for most survivors and does not reflect a person centred approach to treatment.

The three-phase model of therapy for survivors of trafficking as recommended by the National Referral Mechanisms – Practical Handbook published by the OSCE Office for Democratic Institutions and Human Rights (ODIHR) recognises this and suggests a phased approach to treatment to allow “survivors to engage in their recovery in a gradual and paced way”.

It makes clear that “some people may not feel ready to progress through all three phases successively: they may need to have breaks in between or may have to repeat earlier phases”. This is a helpful document to reference when making representations around the length of leave required, particularly if a request for over 30 months leave is being requested.

If a defined period of treatment is offered, you can ask the opinion writer more about that. It would be helpful to find out things such as; is this based on clinical need or are they limited in the duration of treatment they offer by funding constraints or waiting list (especially likely if working in the NHS or charitable sector).

You can ask if they can comment on whether someone can come back to the service or extend treatment if there is still a need for it or whether a period of treatment can be extended overall if weeks may be missed due to holiday or illness. By addressing these points it will be harder for the decision to for example say “you will finish therapy on 01.01.2025 and therefore we are granting leave until 02.01.2025”.

It is important to note that evidence will not and should not in my view be as detailed as a medico-legal report. I would not advocate for a medico-legal report being commissioned solely for a VTS decision because this is simply pushing the evidential burden higher and higher. There may be other very good evidence that can support a grant from services accessed in the community.

Practical note: obtaining a medico-legal report post conclusive grounds decision may significantly increase time to get a decision. This can cause difficulties when someone is in post conclusive grounds support which is subject to frequent reassessments and extension requests which can lead to uncertainty and distress.

However if a medico-legal report has already been provided for your client for another element of their case (for example if they have an asylum claim or if this was sought to support the making of a conclusive grounds decision) then this will certainly be useful and questions could be included to address the information required for VTS leave.

If your client has not yet engaged in treatment but is in the process of doing so then details of any referrals, confirmation of being on waiting list or efforts to obtain treatment should be provided, along with representations around why leave is required. You could give a detailed explanation about your client’s needs with the information available, the local position on suitable treatment services, and information about all sources of help they are getting. Or if they have not been helped to access treatment, you can explain what they should have been provided with under the Modern Slavery Victim Care Contract for examples through referrals made or therapy paid for via “Additional recovery costs support” (see the Statutory Guidance paras 15.215-15.217).

If your client has a support worker under the Modern Slavery Victim Care Contract, or through another service then they should be approached for a letter. These can be particularly helpful if they have been working closely with your client and are able to comment on their presentation and vulnerabilities that indicate they would benefit from a grant of leave. Note: support workers under the Modern Slavery Victim Care Contract can be restricted under the contract in what they can say but it is always worth checking.

When evidence is not available

There are a wide range of perfectly reasonable reasons why evidence may not be available, especially medical evidence, for example if a person has regularly been moved around and has not been able to engage in treatment as a result or indeed due to the significant waiting lists in the NHS. In those instances the best, and really only solution, is to carefully set out in representations and if necessary a witness statement, why this is not available, what services your client has tried to approach and the responses (e.g. where local services available but not suitable for the complexity of the clients needs), and set out why your client still requires the stability of leave to remain to enable them to focus on their recovery.

You should also explore whether your client has been assisted to get privately paid treatment via the Modern Slavery Victim Care Contract. It is important to ask your client how not being granted leave or too short a period of leave for them will impact whether they feel safe enough to engage with services that can assist their recovery, may affect their health. There is no stock answer for this and you should take detailed instructions from your client on why they require leave in the UK.

You may also want to include information via a support worker about practical barriers to accessing mainstream services if leave is not granted.

Availability and accessibility of treatment in country of origin

It will then be necessary to address both the availability and the likely accessibility of treatment. In most instances this will require the production of objective country evidence. The World Health Organisation is a good starting point for looking at treatment availability in specific countries and the Trafficking in Persons reports always have useful country specific information.

The Right to Remain Toolkit also offers useful resources to find other objective evidence.  For the same reasons as medico-legal reports I would be reluctant to encourage country expert reports being commissioned for the purposes of VTS decisions but as with medico-legal reports if you are already instructing a country expert then it would be helpful to ask them to address this point.

Previous decision making often relied on flawed country evidence and in examples I have seen it was enough for some form of treatment to theoretically be available for VTS leave to be refused. The changes made to the guidance on 24 October 2024 do at least give some guidance on how decision makers will determine how likely it is that an individual will actually be able to access treatment.

It would be wise to address each of the factors in the framework within the policy and where necessary rebut any assumptions that may be made about your client, for example if they have a significant employment history but their mental health would now prevent them from securing employment this should be addressed. The assumption that a person will be able to cover the costs associated with the treatment will always need to be evidenced but this could be done by looking at their history and vulnerabilities now, referring to statements, interview records and letters from people working with them.

As I have said, in my view the policy does not go far enough in considering potential barriers to accessing treatment but this does not mean this should not be covered. Although this is not expressly set out in the policy I believe it is arguable that the phrase ‘accessible in the country of return’ leaves it open to talk about the impact of returning to a country which they fear, whether or not this has been objectively proven, and the likely impact that this may have on their ability to access treatment.

It is important to make clear that it can be their subjective fear that will prevent them from accessing treatment irrespective of whether it is available. This is something that it may be possible for a treating clinician to comment on but careful instructions will need to be provided for this to ensure they do not go outside of their remit.

Refusals

If a decision is made to refuse VTS leave then a request for reconsideration should be made. It can also be challenged by way of a judicial review if the decision is considered to be unlawful and has not been made in line with the policy. It is important to be mindful of the timeframes for these (14 days for reconsideration and three months from the date of the decision for a judicial review challenge).

It may be necessary to refer the case to another legal representative if you do not have an appropriate legal aid contract or if you require assistance it is worth reaching out to practitioner forums for assistance or guidance in this area.

Extensions of leave

Prior to the expiry of VTS leave, if granted, an extension request can be made. Requests for extensions will be judged by the same policy. It should be noted that no current circumstances questionnaires are sent out for extensions and therefore it will be important to carefully follow the policy and rules when preparing representations and supporting evidence.

It goes without saying that this process does not lend itself to those who do not have legal representation. 

Conclusion

As is no doubt clear, I remain concerned that the policy in its current form still fails to take a person centred approach and I struggle to see how this can be rectified while section 65 of the Nationality and Borders Act remains in force.

In addition there are concerns around compliance with the Equality Act 2010 as it does not contain any specific guidance to caseworkers on how to have due regard to take steps to meet the needs of disabled persons. If you have evidence to support an argument that your client is disabled and this is ignored or inadequately engaged with, this may amount to grounds for a challenge in its own right.

The current policy is not reflective of ECAT and as has been called for, for many years, all confirmed survivors should be granted at least 30 months leave to remain with a route to settlement. This would provide all survivors, who require it, the time to recover and rebuild their lives. This would also reduce the cost and resources required in making individual decisions for every individual who received a positive conclusive grounds decision.

However, until the position changes it is necessary to prepare a case in accordance with the policy and Home Office practice and provide appropriate evidence on what recovery needs a person has and why it is necessary for them to be addressed here, rather than in their country of return. This briefing will help with that.