In response to the judicial review claim R (MS) v SSHD AC-2024-LON-000866, the Home Secretary has admitted a practice of intentionally delaying claims for temporary permission to stay made by asylum seeking trafficking victims who were at the time earmarked for possible removal to Rwanda.

The pause, which was not published or admitted until now, lasted for a combined total of more than a year, and ended in/around April 2024. The Home Secretary’s admissions therefore pave the way for compensation claims by affected victims.

The policy disclosed in MS is but the latest example of the Home Office operating unpublished policies which, in this instance, obstructed trafficking victims from obtaining permission to stay in a timely and lawful manner leaving many to (and still) endure uncertainty and instability. Not only that, but affected trafficking victims had to continue fighting potential removal to Rwanda while claims for temporary permission to stay were intentionally not being progressed and determined.

The case follows XY v Secretary of State for the Home Department [2024] EWHC 81 (Admin), in which the High Court ruled that the earlier secret pause on KTT claims for leave was unlawful (see previous article by Free Movement for more details).

MS’ background

MS, a Sudanese national, claimed asylum upon arrival in May 2022. He had previously been trafficked into Libya where he was subject to forced labour and severe mistreatment over many months. As a result, MS suffered serious mental health conditions and requires specialist psychological assistance.

MS was detained on arrival in the UK and shortly thereafter, like many others at the time, was told that his asylum claim could be deemed inadmissible and he could be removed to Rwanda. Following eventual release from detention, MS was later recognised as a victim of trafficking.

Despite this recognition, successive Home Secretaries refused to admit his asylum claim for substantive consideration before eventually doing so in April 2024 following judicial review proceedings. His mental health problems were exacerbated by his treatment in the UK, including the limbo and uncertainty he experienced for more than two years.

MS’ claims for temporary permission to stay

MS had two routes for temporary permission to stay as a recognised trafficking victim:

1. Via the landmark 2021 case of EOG and KTT v Secretary of State for the Home Department [2022] EWCA Civ 307 which established that where a person has been recognised as a victim of trafficking under the National Referral Mechanism and has an outstanding asylum claim, which is based on their fear of being re-trafficked, they should be granted leave to remain in the UK until their asylum claim is finally determined; and
2. “VTS” leave which is a form of statutory leave provided for under section 65 of the Nationality and Borders Act 2022 where, for instance, a recognised victim has a need for assistance arising from psychological harm inflicted by exploitation, which cannot be provided for by their home country or another country with which the UK has an agreement e.g. the Migration and Economic Development Partnership with Rwanda.

Whilst both types of permission to stay would be temporary, they afforded the opportunity for stability, including the right to work and apply for benefits. A grant of VTS leave would have also meant removal from the inadmissibility process.

It will be of no surprise to practitioners representing clients in MS’ situation that between January 2023 and March 2024 no decisions were made on MS’ claims. This is despite there being uncontested medical evidence that he required permission to stay to benefit from required psychological treatment and to avoid further harm to his mental health.

While the Home Secretary did not publish or confirm that there was a general pause on claims made by inadmissibility cohort asylum seeking trafficking victims, email correspondence with the Home Office provided by another law firm revealed that there was in fact such a pause.  

Admissions following court case

In March 2024, MS issued judicial review proceedings challenging the failure to determine his claims for leave, and the apparent unpublished policy of not progressing claims for asylum seeking victims subject to inadmissibility on grounds that it breached Articles 4 and 8 of the ECHR.

In response, the Home Secretary confirmed the existence of the intentional policy to pause his and others’ claims for permission to stay on the following basis:

• The pause on KTT leave decisions occurred between March 2023 and March 2024. Undisclosed in R (XY) v SSHD 20245 EWHC 81 was the fact that KTT decision making did not in fact resume in March 2023 for asylum seeking trafficking victims who were earmarked for possible removal to Rwanda.  

• The pause on VTS decision making commenced on 29 June 2023 when the Court of Appeal ruled that there were substantial grounds for thinking that asylum seekers would face a real risk of ill-treatment by reason of refoulment if removed to Rwanda. This persisted whilst the Home Secretary appealed the ruling, and then following the Supreme Court ruling while consideration was given to next steps. Decisions resumed in/around April 2024 around the time decisions started to be made on inadmissibility and the passage of the Safety of Rwanda Bill. The Home Secretary’s position, which in MS’ view is not lawful, is that this was because it was unclear following the Court of Appeal ruling if Rwanda could be treated as being capable of providing the necessary assistance.

See the statement of reasons to the consent order approved by Lavender J on 18 July 2024 for further detail.

When the pause was eventually lifted in MS’ claim, MS was refused both KTT and VTS leave despite internal emails later showing that caseworkers were of the view that he was, in fact, entitled to the latter. Following separate judicial review proceedings, the Home Secretary withdrew that refusal.

Having been granted refugee status in July 2024, MS now continues his claim for compensation for breaches of Articles 4 and 8 of the ECHR due to the impact the policies and delays had on his mental health and recovery.

Significance and implications

Sadly, MS’ story is by no means unique, as many people continue to wait for the admission of their asylum claims and for lawful decisions on temporary permission to stay.

With the Rwanda policy coming to an end, practitioners will likely turn their attention to helping clients achieve redress through compensation claims. For trafficking victims whose claims for permission to stay were affected by this pause, the Home Secretary’s admissions that there was an intentional pause should provide some assistance to that end.

For all those still seeking permission to stay, it may be beneficial to refer to the order in MS particularly where it is claimed that they satisfied the criteria while the pause was imposed on them and there is evidence that delays impacted on victims’ mental health and recovery.

As an update to the recent article by Free Movement, numerous judicial reviews challenging VTS refusals have prompted the new Home Secretary to withdraw decisions and reconsider those claims. At the same time, on 11 July 2024, the Home Secretary also made public a fresh pause on determining VTS claims while she considers the nature of her statutory obligations to victims.

Leaving aside the legality of such a policy, which is surely vulnerable to challenge, it is hoped that impacted victims will be swiftly granted permission to stay and finally able to move forward with their lives.

MS was represented by Gold Jennings and Shu Shin Luh of Doughty Street Chambers and Miranda Butler of Landmark Chambers.

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