The High Court has declared that the Home Office policy of waiting until an asylum decision is made before considering whether to grant trafficking victims Discretionary Leave to Remain is unlawful. Under that policy, a recognised victim of human trafficking who has claimed asylum might wait months or years for the asylum decision before being granted leave. In the meantime, the person would only be entitled to a basic level of asylum support, prohibited from working or studying, and denied benefits. They would also suffer from ongoing uncertainty about their immigration status. In R (JP) v Secretary of State for the Home Department [2019] EWHC 3346 (Admin), Mr Justice Murray (pictured below) concluded that the blanket policy of delay is unlawful.

Ugo Hayter of Deighton Pierce Glynn said “there was no good reason for the Home Office to delay giving our clients the stability and security they needed to have a chance of recovering from their experiences. This judgment should result in changes to the policy that ensure that the many others in our clients’ position will not have to endure the prolonged uncertainty and hardship that the Home Office’s policy has caused them”.

Background: the “scheduling rule” on outstanding asylum claims

The Home Office is obliged to consider granting trafficking victims leave under the European anti-trafficking convention. In this case, the two claimants had been forced to wait almost a year between the National Referral Mechanism deciding that there were conclusive grounds for recognising them as a victim of trafficking, and the grant of Discretionary Leave to Remain.

The lengthy delay occurred because the Home Office operated a blanket policy of making asylum decisions before considering whether a trafficking victim might also be entitled to Discretionary Leave to Remain. The judgment refers to this policy as the “scheduling rule”. It had the perverse effect that it took longer for trafficking victims who were also refugees to secure government support than trafficking victims who were not refugees.

The (terrible) rationale for the policy

The Home Office advanced two justifications for the blanket policy. The first was that it was actually helpful for trafficking victims because it meant that, if eligible, they would be granted leave as a refugee, which has wider entitlements than leave as a trafficking victim. Mr Justice Murray correctly rejected that claim, pointing out that officials could upgrade discretionary leave to refugee leave later if necessary:

Ms Williams submitted that it was in the best interests of an applicant for the more advantageous form of leave to remain, namely, refugee leave, to be determined first. She did not, however, articulate why that is in the best interests of an applicant. A better outcome for the applicant would clearly be to have a decision on ECAT leave made as soon as possible after a positive conclusive grounds decision was made so that, either way, the applicant would know where she or he stands in relation to that issue.

This left the Home Office relying solely on the real reason for having the blanket policy: it is more convenient for officials. It means they do not have to undertake consideration of whether or not to grant trafficking leave if the person has already been granted refugee status.

A breach of international and human rights law

The judge found that the blanket rule violated the anti-trafficking convention in two ways. Firstly, it breached the requirements to provide care and support to trafficking victims:

Although it may be administratively efficient always to consider an asylum claim before determining ECAT leave, where there is, in practice, likely to be a significant delay after a positive conclusive grounds decision has been made before an asylum decision is made, then there is a material risk that, in a significant number of cases, victims will be reduced to NASS support for a considerable period of time. Mostyn J in K held that NASS support is not sufficient to meet the requirements of Articles 12(1) and 12(2) of ECAT. Ms Williams did not argue that his decision in that case was wrong.

Secondly, the blanket rule caused such serious delay that it breached the requirement to grant leave to trafficking victims:

The evidence… amply demonstrate[s] the special safety and protection needs of victims, which the Secretary of State is required by ECAT to bear in mind in determining whether it is appropriate to defer making a decision on ECAT leave for a victim before making a decision on the victim’s asylum claim. The combined effect of (i) the foregoing, (ii) the long delay that may occur (and did in this case for both JP and BS) between a positive conclusive grounds decision in respect of a victim and the determination of the victim’s asylum claim and (iii) the effect of the 45-day rule mean that the victim may receive an inadequate level of support for an extended period of time in circumstances where it is necessary for their personal situation that they have access to, at least, basic trafficking support if not the enhanced trafficking support that would be available to them if ECAT leave were granted.

Murray J went on to rule that the blanket policy was also incompatible with the requirement to secure human rights without discrimination under Article 14 of the European Convention on Human Rights. He found that the policy resulted in differential protection of Articles 4 and 8 ECHR, as well as Article 1 of the First Protocol for trafficking victims, who had claimed asylum when compared with those who had not.

What does this mean for trafficking victims?

Specifically, the High Court orders that

The provision that “All outstanding asylum decisions should be taken before any consideration is given to whether the victim is eligible for discretionary leave” in the Defendant’s policy “Discretionary leave considerations for victims of modern slavery (Version 2.0)” is quashed.

As trafficking charity Kalayaan notes, this a “hugely significant” victory for trafficking victims. The Home Office is currently reviewing the system of identifying and protecting victims of trafficking; this judgment will ensure that any new system will not include a blanket policy of imposing delay on trafficking victims who also seek asylum.

It is important to note that the claim was brought against having a blanket policy. It will still be possible for the Home Office to delay in individual cases. Challenging individual decisions will be difficult and other judges might be more sympathetic to Home Office arguments about administrative convenience.

This is HUGELY significant. Our clients have the agony of having to wait the additional wait for their protection claims to be determined AFTER having been found to be a victim. We hope any new policy will revert to the old system of granting DLR with a +CG – well done to all!!! https://t.co/pGVX5NcM7a

— Kalayaan (@Kalayaan) December 10, 2019

Finally, the judgment includes an interesting paragraph about the justiciability of the anti-trafficking convention, which has not been directly incorporated into UK law. Before the Court of Appeal in PK (Ghana), the Home Office conceded that whether or not trafficking policy complied with the convention was justiciable. The concession was maintained in this case, but with the ominous note that it may be withdrawn at a later date: “the Secretary of State’s position in this case is that she is constrained to follow this concession, but she reserves her position for the future”.