The Home Secretary has been unlawfully operating a secret policy preventing victims of trafficking from being granted the leave that they were entitled to while their asylum claim was pending. The case is XY v Secretary of State for the Home Department [2024] EWHC 81 (Admin). This article is a long read but I think many people will be interested in the background and the behaviour of the Home Secretary in this case. I have also set out some key concepts for those who need it, but I have labelled the sections so people can skip around as desired.

Explanation of key concepts

None of this will make much sense without a grasp of the main concepts, so this is for those of you who need a reminder (anyone else can skip to the Background section).

First of all, this case relates to the position before the changes brought into force in January 2023.

Secondly, what is at issue here is the granting of a period of discretionary leave to remain to a person who has been recognised as a victim of modern slavery. This is because when a person is accepted by the Home Office to be a victim of modern slavery (i.e. they receive a “positive conclusive grounds decision”), they are not automatically granted leave to remain in the UK.

Article 14 ECAT

The Council of Europe Convention on Action against Trafficking in Human Beings 2005, or “ECAT” as it is known and to which the UK is a signatory, provides for the following:

Article 14 – Residence permit
1. Each Party shall issue a renewable residence permit to victims, in one or other of the two following situations or in both:
a. the competent authority considers that their stay is necessary owing to their personal situation;
b. the competent authority considers that their stay is necessary for the purpose of their cooperation with the competent authorities in investigation or criminal proceedings.

The guidance on granting leave before KTT

Before the decision in R (KTT) v Secretary of State for the Home Department [2021] EWHC 2722 (Admin) (see also our write up of the Court of Appeal’s decision upholding this) the position was set out in the guidance ‘Discretionary leave consideration for victims of modern slavery’.

This said that leave would be granted in three situations, namely where:

• leave is necessary owing to personal circumstances
• leave is necessary to pursue compensation
• victims are helping police with their enquiries

The decision in KTT

In KTT, the High Court held that the guidance was unlawful as it did not provide for a grant of leave to remain where a person had a pending asylum claim that was based on a fear of re-trafficking. It was held that the ordinary meaning of article 14 means that a confirmed victim of modern slavery who is also seeking asylum must be granted leave to remain, as their stay in the UK is necessary due to their personal situation (i.e. the need to pursue their asylum claim). The Court of Appeal concurred, saying “I can see no basis for not giving the language of article 14.1(a) its natural meaning”.

The legal position after the High Court’s decision in KTT was therefore that a person who was a confirmed victim of modern slavery and who had a pending claim for asylum that was based on a fear of re-trafficking was entitled to a grant of discretionary leave. As a reminder, the Upper Tribunal said last year that the asylum claim does not need to based on re-trafficking in its entirety.

This case is about what happened next.

Background

The claimant

The claimant is an Albanian national who was kidnapped and trafficked in Albania and was forced to sell drugs. His uncle helped him to escape Albania and he came to the UK in 2018 and claimed asylum. In 2020 he was diagnosed with post-traumatic stress disorder. On 21 July 2021 a positive conclusive grounds decision was made on his trafficking claim, meaning that the Home Office accepted that he had been trafficked in Albania.

On 29 November 2021, a month after the High Court’s decision in KTT, the Home Office told the claimant’s lawyers Asylum Aid that a provisional decision had been made on the claimant’s discretionary leave. They said that it was going through “internal checks” which would be completed by 8 December 2021.

On 9 December 2021 Asylum Aid asked what was happening with the decision, given the deadline had passed. No response was received. This letter was a decision to refuse leave but it was never sent to the claimant or his lawyers, and was only disclosed at a late stage of the judicial review.

Home Office decisions in the aftermath of KTT

On 23 December 2021 the Court of Appeal in KTT refused the Home Secretary’s request for a stay on the order to make a fresh decision on KTT’s application for leave. There was no request for a general stay on the High Court’s decision pending a final outcome on the appeal.

On 19 January 2022 the Assistant Director to the Trafficking Litigation Lead at the Modern Slavery Unit at the Home Office sought ministerial agreement to the handling of discretionary leave decisions following the KTT decision. Decisions on whether to grant discretionary leave due to modern slavery had been deferred where a person had made an asylum claim, but it was stated that this should no longer be the case and people should be granted a period of temporary leave from the date of the conclusive grounds decision to the conclusion of the asylum claim.

It was also said that as of the middle of January 2022 there were around 800 cases where the person had been confirmed as a victim of modern slavery and they had a pending asylum case, although further work was needed to identify which of those fell within the scope of KTT (because of the existence of a fear of re-trafficking claim).  

It is noteworthy that this memo expressly pointed out that where leave was granted “the individual will have access to mainstream benefits” [at 25]. This certainly gives the appearance of political concerns being placed above compliance with the law.  

Four options were proposed, the recommended option was that “decision making functions continuing as usual but for any victim of modern slavery with an outstanding asylum claim, the modern slavery discretionary leave decision was to be “held.”” [at 27]. This is clearly wider than a pause on grant of leave under KTT only. However this was initially redacted and instead was summarised inaccurately by a Government Legal Department lawyer in a letter dated 26 September 2023 as this “would still allow decision making to take place where an individual could be granted discretionary leave under the existing policy” [at 28] (“existing” meaning the pre-KTT position).

The decision was taken to put all cases with a pending asylum claim on hold, whether or not the risk of re-trafficking had been raised [at 30].

Further legal challenges

During the period when cases were paused, the Home Secretary did grant leave in line with KTT to those who brought or threatened judicial review. The Home Office complains about pre action letters being sent, but this will do very little to discourage the view that often the only way to progress cases is to pursue a judicial review.

On 31 January 2022 the Home Office’s National Referral Mechanism’s technical specialist emailed the NRM team stating that in order “to mitigate further legal challenges” they should not serve a decision refusing to grant discretionary leave to an individual who had an outstanding asylum claim but did not meet the pre-KTT criteria for a grant of leave. Any such proposed refusals would need to be sent to the Government Legal Department but even after that review the decisions “cannot be served until further notice”.

On 3 February 2022 the Home Secretary agreed the recommended option for decisions to continue being made but for any victim of modern slavery with an outstanding asylum claim, the decision on discretionary leave was to be “held”.

On 10 March 2022 the Home Secretary responded to Asylum Aid apologising for the delay in making the claimant’s discretionary leave decision. Interestingly, the letter actually said that “there were certain types of discretionary leave decision that the defendant was “currently unable to serve, causing delays to the process”” (I am quite surprised that they were this frank). This letter included included a blank personal circumstances questionnaire form (these seem to often be used by the Home Office to give the appearance that a claim is being progressed, as was the case here).

On 13 March 2022 Asylum Aid returned the questionnaire (their third time of doing so) and asked for an urgent decision to be made.

The Home Secretary is unsuccessful in the Court of Appeal

On 17 March 2022 the Court of Appeal upheld the High Court’s decision in KTT.

On 14 April 2022 a second refusal letter was drafted for the claimant. This was then checked and placed on hold, in accordance with the process set out on 31 January 2022.

On 18 April 2022 Asylum Aid sent a pre action letter in respect of the delay. The Home Secretary responded with a commitment to make a decision within three months.

On 27 April 2022 the Nationality and Borders Act 2022 received Royal Assent. Section 65(2)(a) was designed to undo the effect of KTT but was not brought into force at this time.

On 21 June 2022 evidence was provided from the claimant’s counsellor to the effect that it was unlikely there would be any improvement in his mental health until he felt safe and stable in the UK.

On 8 July 2022 the Deputy Chief Caseworker at the Single Competent Authority emailed staff to say that all discretionary leave decisions affected by KTT would remain on hold. A further email on 11 July 2022 said that refusal letters should not be drafted. It also stated that the guidance “is for internal use only and should not be disclosed to external stakeholders”.

In light of the evidence of the effect of the delay on the claimant’s mental health, Asylum Aid sent a pre action letter in July 2022 and another one on 27 October 2022 with further evidence about his mental health.

The Supreme Court ends the Home Secretary’s hopes of overturning KTT

On 28 October 2022 the Supreme Court refused the Home Secretary permission to appeal the Court of Appeal’s decision in KTT.

On 1 December 2022 the application for judicial review was lodged on behalf of the claimant.

On 11 January 2023 a further submission was made to ministers asking for approval for a proposal to address the Court of Appeal’s decision in KTT. The proposal was that from 30 January 2023 there would be a policy change that would give effect to ECAT 14.1(b) only and that there was no express policy intent to comply with article 14(1)(a) which was instead “at most an aspiration”.

This submission also said that there were around 1,500 people potentially eligible for a grant of leave under KTT and that options were “being worked through” for this group. In relation to the proposal to reduce protections under article 14(1)(a) the reactions of Iain Duncan Smith and Theresa May were specifically noted as a concern.

It was also acknowledged that the change was not in line with indication given during the passage of the Nationality and Borders Act 2022 but that care had seemingly been taken during the passage of the Bill not to state that section 65 would “fulfil a maximalist approach to ECAT compliance”.

It was also said that failure to pursue this watering down of ECAT rights and that if KTT was implemented it would have “significant operational implications” and was likely to impact “our ability to clear the asylum legacy backlog by the end of December 2023 and achieve increased removals to Albania due to the resource required to casework these cases” [at 45].

So the position was that rights must be watered down on the basis that it was too resource intensive for the Home Office to grant people temporary leave pending the outcome of their asylum claim. The Home Secretary agreed this proposal on 17 January 2023. Section 65 of the Nationality and Borders Act 2022 was also to be brought into force on 30 January 2023.

Proposed resolution for those entitled to KTT leave

On 27 January 2023 a proposal was made for the handling of the pre-30 January 2023 cases of people who were entitled to KTT leave. The proposal was that anyone who had been confirmed as a victim of modern slavery before 30 January 2023 and had an outstanding asylum claim (including a further submissions) that was based on a fear of re-trafficking would be granted 12 months discretionary leave. It was estimated that 80% of the 1,500 outstanding cases would be entitled to such a grant of leave.

The proposal said that the alternative was to decide these cases under the new process in section 65 Nationality and Borders Act 2022. There were concerns about the reputational impact of this given it was the Home Office’s own delay that had left the confirmed victims of modern slavery in this position.

A decision is made to process the outstanding cases in accordance with the law

In response to the submission of 27 January 2023 the Home Secretary asked whether “doing nothing” was an option”. She was told on 14 February 2023 that this was not an option that could be recommended and that judicial reviews were continuing to be lodged challenging the delay in implementing KTT. There were 96 pre action letters at this date and 63 judicial reviews (presumably a subset of the 96 figure).

New guidance was published on 16 March 2023 providing for discretionary leave to be granted in line with KTT to those who had a positive conclusive grounds decision made before 30 January 2023 and who had an outstanding asylum claim based “in a material part” on the risk of re-trafficking.

The litigation

The challenge was to the Home Secretary’s refusal to make a decision on whether or not to grant leave to remain as a victim of modern slavery. The claimant’s asylum case had been refused and his asylum claim was pending in the First-tier Tribunal.

The claimant argued in the judicial review that the Home Secretary was operating an unpublished, blanket policy whereby a person entitled to leave in line with the decision in KTT would not have a decision on that entitlement made until the Home Secretary had “considered the implications of the judgment in KTT”. It was also asserted that there were around 600 people in the same position as XY, namely who had claimed asylum and were waiting for an outcome to their asylum claim and were likely to be entitled to leave to remain pending that outcome, in line with KTT.

The Home Secretary’s attempt to stop the judicial review

On 23 December 2022 the Home Secretary filed the acknowledgement of service. As is so often the case with these wider policy challenges, the Home Secretary sought to end the case by granting the claimant discretionary leave to remain and asking the claimant to withdraw the proceedings (presumably on the basis that they were now “academic” given the claimant had been granted leave).

The grounds were then amended so that the challenge was to the refusal to grant the claimant leave from 21 July 2021 (when he was accepted as a victim of modern slavery) to the grant of leave on 18 January 2023 and that this was contrary to the Home Secretary’s leave policy. A second ground of challenge was that the refusal to grant leave during this period was a breach of article 8 ECHR (this initially included an article 4 challenge that was not pursued). The third ground was that the decision to defer consideration of the claimant’s entitlement to leave was in breach of his rights under article 14 ECHR.

Permission and an anonymity order were granted on 8 March 2023 and on 6 April 2023 Asylum Aid wrote to the Home Secretary asking for disclosure of the “details of the unpublished policy of suspending or deferring leave decisions of confirmed victims of trafficking in light of KTT“. They said that if this was not provided they would seek an order from the court for this under part 18 of the Civil Procedure Rules. They also asked for the number of confirmed victims of modern slavery whose decisions had been placed on hold.

The High Court’s decision

Was the Home Secretary was operating an unlawful secret policy?

The claimant relied on R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245 (an unpublished policy must not be inconsistent with a published policy) and R (Anufrijeva) v Secretary of State for the Home Department and another [2004] 1 AC 604 (adverse decisions must be served so that they can be challenged if needed).

At [58] Mr Justice Lane said that it would have been possible for the Home Secretary to have published an interim policy that decisions would not be made until KTT had concluded. Counsel for the claimant pointed out that this had been done in relation to PK (Ghana) v Secretary of State for the Home Department [2018] EWCA Civ 98. where interim guidance had been published stating that all refusal decisions must be put on hold [at 60].

On the Anufrijeva point, the Home Secretary argued that “the principle that a person who is subject to an adverse decision is entitled to be informed of it does not apply because those in the position of the claimant could bring a judicial review on the basis that the defendant’s delay in dealing with their case was unlawful”.

Unsurprisingly, this submission was “emphatically” rejected as people should not be expected to bring legal proceedings in order to discover why decisions are not being made or communicated [at 67]. “Even more problematic” was the fact that the Home Secretary was responding to judicial reviews with grants of leave and no explanation was provided about decisions being held back or not made pending the final outcome of KTT [at 68].

Breach of article 8

The consequences for the claimant of the refusal to grant him the leave he was entitled to was that he was unable to work, to rent a property, open a bank account, get a driving licence or to access public funds. The claimant relied on R (Balajigari) v Secretary of State for the Home Department [2019] 1 WLR 4647 where Underhill LJ had observed that these consequences may engage article 8. The claimant gave detailed evidence about the impact his lack of leave was having him, this was dismissed by the Home Secretary as “self-serving” [at 87]. Mr Justice Lane did not agree and concluded that article 8(1) was engaged in the claimant’s case.

On considering when the breach started, the judge concluded that the correct date was 8 December 2021, which was when the Home Secretary had first indicated that a decision had been made and that checks would be completed by. The article 8 breach was held to have run from 8 December 2021 to 18 January 2023.

There was a further article 8 point argued which was that there had also been a procedural breach. The case of R (Gudanaviciene) v the Director of Legal Aid Casework) [2015] 1 WLR 2247 was relied on. The question set out there is “whether the person affected has been involved in the decision making process, viewed as a whole, to a degree sufficient to provide them with the requisite protection of their interests”. Mr Justice Lane concluded that there had also been a breach of article 8 on this basis as the claimant’s ability to use judicial review and obtain leave to remain had been materially impaired by the Home Secretary’s policy.

Breach of article 14

The claimant relied on R (JP) v Secretary of State for the Home Department and another [2020] 1 WLR 918 in support of his claim that the Home Secretary was also in breach of the prohibition against discrimination in article 14 ECHR. In JP it had been held that the Home Secretary’s practice of deferring a decision on whether to grant leave as a victim of modern slavery until after a person’s asylum claim had been determined was a breach of article 14.

Mr Justice Lane accepted the claimant’s position that the two groups to be compared were victims of modern slavery who claim asylum and victims of modern slavery that had not claimed asylum. The latter group would receive a decision on whether or not they would be granted leave, whereas the first group. This different treatment by the Home Secretary was not justified, as both groups have the same need for leave. It was concluded that there had also been a breach of article 14.

Conclusion

As indicated above, there were some serious issues (yet again) relating to the ability of the Home Secretary to comply with the duty of candour. This post is long enough and I am going to write this latest development on the issue separately.

This is a case involving a young Albanian man who is likely to be at risk of being re-trafficked if he is returned to Albania. Changes made by the government over the past couple of years have ensured that people in his position will be sent back into these situations with little if any ability to mount a challenge.

My final comment for now is that it is great to see Asylum Aid continuing to go from strength to strength under Alison Pickup’s direction, and her work and the work of her colleagues at Asylum Aid was rightly commended by the judge in this decision.