The Upper Tribunal has confirmed that the Home Secretary’s “Discretionary Leave” guidance, version 10, published on 16 March 2023 is unlawful to the extent that it excludes victims of trafficking who had been accepted by the Home Office to be a victim before 30 January 2023 and had, before that date, articulated a trafficking-related asylum claim which remains outstanding on the basis that they are subject to deportation proceedings. The case is R (VLT Vietnam) v Secretary of State for the Home Department JR-2023-LON-001944.

Unless you have closely followed the litigation in R (KTT) v SSHD [2021] EWHC 2722 (Admin) and its aftermath, I would strongly advise that you start by reading Sonia’s excellent article on XY v SSHD [2024] EWHC 81 (Admin) which provides a detailed chronology of the Home Secretary’s implementation of the judgment in KTT (or rather lack thereof).

This case relates to the position of those, like VLT, who had made a trafficking-related asylum claim before the relevant provisions in the Nationality and Borders Act 2022 came into force on 30 January 2023 and have been accepted by the Home Office to be a victim of modern slavery (i.e. those who received a positive conclusive grounds decision).

Background

VLT is a Vietnamese national in his 50’s. He was the victim of serious and long-term trafficking both in Vietnam and the UK. He was trafficked and re-trafficked to the UK on multiple occasions and forced to work in a cannabis plant in the UK. As a result, he was convicted of conspiracy to produce cannabis back in 2012 and the Home Secretary issued a deportation order against him.

VLT was deported to Vietnam twice but, each time, was re-trafficked to the UK and forced to work in the UK. The Home Office accepted that he is a victim of trafficking.

VLT claimed asylum before 30 January 2023 based on his risk of re-trafficking on return to Vietnam. The Home Secretary refused this claim and an appeal against that decision remains outstanding.

Refusal to grant temporary residence permit

The subject of this challenge was the Home Secretary’s refusal to grant VLT temporary permission to stay in the UK while his protection claim was ongoing.

VLT argued that the parts of the Discretionary Leave policy guidance that excluded persons like him who had a deportation order were unlawful. The Home Secretary had through his Discretionary Leave guidance indicated a commitment to consider pre-30 January 2023 cases on the basis that Article 14(1)(a) ECAT (Council of Europe Convention on Action against Trafficking) had been implemented into domestic law through this guidance (following the judgment in KTT). As article 14(1)(a) ECAT did not allow for an exception on the ground that a person was subject to deportation, the deportation order exception in the Discretionary Leave policy was consequently unlawful.

The Home Secretary’s position was that the guidance provided for “benevolent transitional provisions” aimed at implementing the judgment in KTT for pre-30 January 2023 cases. However, these provisions did not extend to those subject to deportation which the guidance explicitly excluded.

The decision

The judge agreed with VLT. She found that the Discretionary Leave policy was intended to give effect to article 14(1)(a) ECAT in respect of pre-30 January 2023 cases [45] and that imposing a blanket requirement for the person not to be subject to a deportation order was unlawful as it failed to give effect to the obligations under ECAT [55].

What next

As a result of the judgment, the position is currently that VLT and individuals in his position are entitled to a temporary residence permit regardless of whether they are subject to a deportation order. The Home Secretary will need to amend the guidance accordingly.

The last word may not have been spoken yet, however. Having been refused permission to appeal by the Upper Tribunal, the Home Secretary may decide to apply for permission to appeal the judgment to the Court of Appeal.

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