In R (EOG & KTT) v Secretary of State for the Home Department [2022] EWCA Civ 307, the Court of Appeal has confirmed that challenges arguing that Home Office policies breach the European Convention Against Trafficking (ECAT) are justiciable insofar as the policy purports to comply with ECAT. It went on to uphold a previous (and very important) finding that confirmed victims of trafficking who claim asylum should be granted permission to stay while their asylum claim is decided.

Facts

Both EOG and KTT alleged that their treatment, pursuant to the discretionary leave policy guidance, was contrary to ECAT.

At the time of her claim, EOG was a “potential victim of trafficking”, in that she had a positive reasonable grounds decision. She challenged the lack of provision for people in that position to get a grant of discretionary leave to remain (permission to stay in the UK).

EOG argued that the lack of a specific policy for grants of interim discretionary leave for potential victims was contrary to article 10(2) of ECAT. This stipulates that people for whom there are reasonable grounds to believe that they are trafficking victims “shall not be removed from its territory until the identification process as victim… has been completed”.

KTT was a “confirmed victim of trafficking”, in that she had a positive conclusive grounds decision. She had also claimed asylum, and wanted permission to stay while her asylum claim was decided. 

The policy did not permit grants of discretionary leave to asylum seeking trafficking victims, on the ground that people with an outstanding asylum claim would be allowed to stay in the UK anyway. KTT argued that this was contrary to article 14.1(a) of ECAT, which stipulates that a “renewable residence permit” shall be granted where it is considered that “[a victim’s] stay is necessary owing to their personal situation”.

In the High Court, both claims succeeded; each judge found that the discretionary leave policy was contrary to ECAT in the manners alleged.

Justiciability

An important preliminary issue in the Court of Appeal was justiciability. 

As the court recognised, and as has been pointed out in previous posts, there have been many previous cases where the Secretary of State conceded that insofar as her policy intends to comply with ECAT, there would be a justiciable error of law if it failed to do so.

In the EOG and KTT litigation, the Home Office repeatedly sought to disavow this position in light of the decision in R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26. In that case, the Supreme Court emphasised the constitutional principle that unincorporated treaties (like ECAT) do not form part of UK domestic law. 

But in another volte face, counsel for the Secretary of State clarified during the hearing that he “no longer wished to challenge” the finding that the claims were justiciable, whilst reserving her position should the case go further. This meant that justiciability was no longer a live issue. 

In any event, the court agreed that nothing in SC affected the courts’ previous acceptance of the government’s concession that non-compliance with ECAT — insofar as it was the government’s policy to comply — would be a justiciable error of law (see paragraph 34). That said, “it is always open to the Government, since ECAT is unincorporated, to make it clear that it has chosen not to give effect to it, whether generally or in some particular respect. As a matter of constitutional principle such a decision could not be challenged in the domestic courts”.

The Court of Appeal’s decisions

EOG: Home Office wins

The court found that the judge’s decision that article 10.2 of ECAT imposes an obligation on the UK to grant potential victims leave to remain was an “unsustainable construction”. In the Court of Appeal’s view, the statement that “[potential victims] shall not be removed” merely imposes a negative obligation. This contrasts with the positive obligation in article 14, which requires states to “issue… a residence permit” in certain situations.

The court’s interpretation was reinforced by: (i) the terms of the Explanatory Report accompanying ECAT, which confirms that art 10.2 is only concerned with irremovability; and (ii) article 13.1, which provides that during the recovery and reflection period “it shall not be possible to enforce any expulsion order” and necessarily contemplates that the potential victim may have no right to reside.

That potential victims remain in the country as “overstayers, or as illegal immigrants”, whilst unsatisfactory for victims, was understandable: states would not want to confer more than minimum rights until victims status is confirmed.

The Home Office’s appeal in EOG was thus allowed. Duncan Lewis, her solicitors, point to “several welcome points of clarification” that nevertheless arise from the judgment. These include the possibility of potential victims making human rights claims for permission to stay in which their status as a potential victim will be a material consideration.

KTT: victim wins

Part of the evidence before the court was a witness statement from a Home Office official, who said that “the [discretionary leave] policy exists to reflect the requirement in Article 14.1(a) of ECAT to consider whether a grant of discretionary leave is necessary…”.  Although this was adduced in EOG, Lord Justice Underhill rejected the contention that it was not admissible in KTT’s case, calling it “a formal public statement of the Government’s purpose in making the relevant policy”. It reflected the longstanding position of the government to give effect to Chapter III of ECAT.

He also agreed with the High Court’s conclusion that the ordinary meaning of article 14 means that a confirmed trafficking victim who is also an asylum seeker must be granted leave to remain: “I can see no basis for not giving the language of article 14.1 (a) its natural meaning”.

Underhill LJ acknowledged that this:

puts confirmed victims of trafficking who are seeking asylum in a better position than other asylum-seekers. That may not be wholly coherent, but it is the straightforward consequence of the fact that the UK has chosen to ratify, and to implement, a Convention which gives victims of trafficking some rights which international law does not require to be accorded to asylum-seekers.

The government’s appeal in KTT was thus dismissed.

Comment

The court’s decision confirms that, insofar as the government purports to give effect to ECAT (or any other unincorporated international treaty) via policy guidance, the policy guidance is justiciable. It remains to be seen if the Home Office will challenge this conclusion in the Supreme Court, considering the express reservation of her position to do so.

The court’s decision also confirms that there is nothing in domestic law to prevent the government from making clear its wishes not to comply with its international obligations, whether generally or in particular respects.