The new Statement of Changes, published on 18 October 2022, has introduced yet another appendix to the Immigration Rules: Appendix Temporary Permission to Stay for Victims of Human Trafficking or Slavery. The new appendix will be added on 30 January 2023.

The provisions largely mirror those set out in primary legislation, in sections 63 and 65 of the Nationality and Borders Act 2022 which are not yet in force. In accordance with section 87(1), the Secretary of State is required to make regulations to appoint a day by which the relevant sections come into force, and such regulations will likely be made before the new appendix is added to the immigration rules in January.

No initial application required

Looking at the appendix, you will notice that it only caters for extension applications. This is because individuals who fall within scope of the appendix are not required to make an application for temporary leave to remain. There is already a support system in place in the UK for victims of trafficking. It includes policy on referrals for potential victims of trafficking, and making reasonable and conclusive grounds decisions on whether an individual has in fact been a victim of trafficking or exploitation. You can read more about the support system here.

From January, individuals will automatically be considered under this new route by the Secretary of State, upon receiving a positive conclusive grounds decision. The route essentially adds to the rules the current policy of providing a temporary grant of leave to an individual found to be a victim of trafficking, even where they already have an asylum claim being considered. This falls in line with the High Court’s decision in R (KTT) v Secretary of State for the Home Department [2021] EWHC 2722 (Admin). You can read more about this case here.

This, in theory, means that every person who receives a positive conclusive grounds decision should be considered under this appendix where they are not a British citizen and do not have an alternative and more favourable immigration permission. Let’s hope we see the same in practice.

Who qualifies for permission to stay under the appendix?

To qualify for leave to remain under the new appendix an individual must meet a number of criteria. They must be in the UK. And, as mentioned, they must have a positive conclusive grounds decision on their trafficking claim.

Their grant of leave to remain in the UK must arise from exploitation and must be granted for one of three purposes. First, where the grant of leave would assist with their recovery from any physical or psychological harm; a requirement that will not be satisfied where the Secretary of State considers that the person’s needs can be met in the country they would be removed to. Second, where the grant would enable them to seek compensation if this compensation could not be sought from outside the UK and it would be reasonable for them to do so. Third, where the grant would enable them to cooperate with an investigation or criminal proceedings relating to their trafficking or exploitation.

An application will fall for refusal where the individual is either a threat to public order, or where they have claimed to be a victim of trafficking in bad faith (as set out in section 63 of the Nationality and Borders Act 2022). They should not have previously been refused a grant of leave to remain under this appendix or under the discretionary leave for victims of modern slavery policy.

The cancellation provisions in the appendix also import a number of provisions from Part 9: grounds for refusal, including those related to deportation orders. No doubt some of these provisions may be subject to litigation in the future.

Where an individual is applying for an extension, they should make a valid application using form FLR(HRO) and pay the required fee.

How can refusal be challenged?

In the first instance, a refusal decision can be challenged by requesting a reconsideration. The rules confirm that a person should be notified of the process for reconsideration in their decision letter. A further refusal may then be subject to judicial review.

What will the conditions of grant be?

Permission to stay under the appendix is granted for a period that is necessary to fulfil its purpose. For example, to assist in the individual’s recovery, seek compensation or assist in a criminal investigation. The maximum period leave to remain is granted for is 30 months, except where the sole purpose is to seek compensation in which case leave to remain is granted for a maximum period of 12 months. The route does not lead to settlement.

Leave to remain under the appendix provides for access to public funds and permission to work and study, subject to meeting the usual ATAS conditions.

Dependent children of trafficking victims may qualify for leave to remain in line with their parents.

Given the significant overlap between the schemes, it seems likely that the appendix will replace the current Discretionary Leave for victims of Modern Slavery policy. Those who already have leave to remain under the policy are able to extend their leave under the new appendix, provided they meet the requirements.