No damages for failure to grant leave to survivor of trafficking

The Upper Tribunal has dismissed a claim for damages for breach of article 8 ECHR following on from the Home Secretary’s failure to grant the applicant discretionary leave as a victim of trafficking. The case is R (on the application of KM (Nigeria)) v Secretary of State for the Home Department (ECAT: where stay necessary) [2025] UKUT 92 (IAC).

The applicant was trafficked to the UK twice, the second time he was groomed by a “county lines” gang and was charged with possession with intent to supply a Class A drug. After recognising him as a victim of trafficking the Competent Authority referred his case to the police to investigate those who had trafficked him. The police said that his presence in the UK was not necessary to assist with either the investigation or prosecution.

On 12 December 2022 the Home Secretary decided not to grant the applicant leave to remain. It was considered that he could access his medication in Nigeria, he would not be at risk of re-trafficking if returned, and the police did not need him to remain in the UK. On 7 August 2023 the applicant was granted limited leave to remain in the UK for two and a half years on human rights grounds.

The judicial review claimed that the decision to refuse leave on 12 December 2022 was taken “not in accordance with the law” and breached article 8(2). In particular, it was argued that the applicant needed to be in the UK to mount a defence to the criminal charges made against him.

The Upper Tribunal dismissed the argument, stating that there was no such requirement under ECAT. The tribunal also said that the refusal on 12 December 2022 did not have the effect of exposing him to the consequences of the ‘hostile environment’, as he was already subject to these on account of his status as an overstayer and so there was no breach of article 8.  

The headnote states:

(1)         Where a recognised victim of modern slavery is prosecuted for offences arising out of the forced criminality that formed a basis for the Competent Authority’s recognition of his or her status as a victim of modern slavery, the Secretary of State is not required by Article 14(1)(a) of the Council of Europe Convention on Action Against Trafficking in Human Beings (ECAT) to consider that their “stay is necessary owing to their personal situation” in order for the individual to rely on the Article 26 non-punishment provision, or otherwise defend the criminal charges on the basis of being a victim of modern slavery. 

(2)         Where the Secretary of State is satisfied that the Competent Authority referred a positive conclusive grounds decision to the police, and where the police have confirmed that the individual’s presence in the United Kingdom is not required for the purposes of investigating or prosecuting any criminal offences, no further steps are required by the Secretary of State when determining whether a person’s stay is necessary for the purposes of cooperating with the police and prosecuting authorities in investigation or criminal proceedings for the purposes of Article 14(1)(b) of ECAT.