The Upper Tribunal has confirmed that a recognised victim of trafficking who is also an asylum seeker, partly fearing re-trafficking on return as well as political persecution, should have been granted permission to stay (leave to remain) whilst their asylum claim was pending, in line with findings in R (KTT) v Secretary of State for the Home Department [2021] EWHC 2722 (Admin). You can read more about the decision in KTT here. 

In this case, R (on the application of SSA (Ethiopia)) v SSHD 2021-LON-001894, the tribunal clarified that the asylum claim need not be based entirely on fear of re-trafficking to get leave under ECAT, so long as the issue is put forward as one of the reasons the individual fears returning to their country of origin. This post also considers the impact of the new policy guidance on temporary permission to stay for victims of human trafficking on decisions. 

The facts

SSA experienced persecution in Ethiopia, her country of origin, due to her support for the Oromo Liberation Front (OLF). Fearing arrest, SSA found employment as a domestic worker in Saudi Arabia where she was subjected to exploitative working conditions. Several years later she wished to visit her ill brother in Ethiopia. Upon her return she was arrested and subjected to severe torture. She eventually managed to flee and resumed employment in Saudi Arabia. SSA was brought to the UK by her Saudi employer on a domestic worker visa in 2018. She was removed from her employer’s house by the police after they learnt of her exploitative working conditions.

SSA subsequently claimed asylum in the UK. In her screening interview, SSA disclosed her exploitation in Saudi Arabia and stated she feared being killed in Ethiopia due to her support for the OLF and previous experiences. In an asylum witness statement, she also stated that she still feared her Saudi employer. Her legal representatives submitted this to the Home Office with a statement of additional grounds notice under Section 120 of the Nationality, Immigration and Asylum Act 2002, which confirmed her fear of re-exploitation upon return. SSA’s case was referred to the National Referral Mechanism (NRM) for her trafficking to be investigated and she received a positive reasonable grounds decision.

SSA was recognised as a victim of trafficking in 2021. She was subsequently refused discretionary leave to remain as a victim of trafficking. It was decided that her protection claim should be considered first and, in the meantime, her situation did not warrant a grant of discretionary leave.

The decision

SSA argued that in refusing discretionary leave, the Secretary of State acted contrary to Article 14(1)(a) of the Convention on Action against Trafficking in Human Beings (ECAT), which requires the competent authority to issue a residence permit to confirmed victims of trafficking if a stay is necessary “owing to their personal situation”.

The Secretary of State argued that SSA’s stay in the UK was not necessary because her asylum claim was not ‘substantially’ based on a fear of re-trafficking and that the ‘real thrust’ of the protection claim was not trafficking-related. This argument was not accepted by the tribunal:

“… I cannot immediately imagine the yardstick by which a decision-maker could gauge whether a protection claim was ‘substantially’ based on a fear of re-trafficking. The only appropriate qualification to what was said in KTT is, in my judgment, that the protection claim must be based in material part on a fear of re-trafficking. It suffices, in other words, for there to be a fear of re-trafficking articulated to the extent that the respondent is bound to consider it. Where a claim is based in material part on a risk of re-trafficking, the principle in KTT is engaged, since the accepted victim of trafficking’s stay is necessary, for the purposes of Article 14(1)(a), whilst their protection claim is pending.”

The Secretary of State argued that the asylum claim was not trafficking-related because SSA did not articulate this point. Rather, it was raised by her legal representatives in the Section 120 notice and subsequent written submissions. The judgment helpfully highlights the importance of legal representatives and should assist others who may be facing similar arguments (the legal team in this case have seen a number of defences running this argument):

“I consider there to be a significant risk, however, in attempting to draw a bright line between what is said by an applicant for protection and what is said by their legal representatives. An individual might be at risk on return to their country of origin for a reason that has not occurred to them. It might be asserted, for example, that a risk of persecution in an individual’s home area might reasonably be avoided by relocating to another. The applicant in question has never been to that part of the country and might know nothing about it but their solicitors might, with reference to background material, be able to establish (or at least to submit) that relocation to that part of the country would expose the individual to a risk.”

SSA argued that the Secretary of State also acted contrary to her own discretionary leave policy, which itself was unlawful as it did not reflect the findings in KTT. Whilst Discretionary leave for victims of Modern Slavery Policy (DL for VoMS) Version 5.0 was issued in December 2021, it was essentially identical to version 4.0 and did not reflect the findings in KTT, which was promulgated in October 2021. It is not clear why an interim policy could not be issued for over a year following the judgment in KTT, as doing so would have benefitted numerous recognised victims of exploitation.

The Secretary of State argued that the policy was not amended due to the ongoing litigation in KTT. Furthermore, she had adopted a practice of ‘bespoke consideration’ in individual cases. This argument was also not accepted by the tribunal, which held that “there has been no attempt to alter the policy to reflect what was said by Linden J or by the Court of Appeal and the policy must, it seems to me, be unlawful for its failure properly to reflect the requirements of ECAT”.

Now that litigation in KTT has concluded (permission to appeal to the Supreme Court was refused on 28 October 2022), new policy guidance has been issued, in force as of 30 January 2023, along with the new appendix to the Immigration Rules in line with Section 65 of the Nationality and Borders Act 2022). This replaces version 5 of the discretionary leave guidance, though decisions made before 30 January will still be challengeable under the old guidance.

Finally, it was held that SSA was discriminated against as an asylum seeker by the deferral of her discretionary leave consideration. The tribunal gave an example of a potential instance in which such a deferral may be appropriate. However, this did not apply to SSA:

“… It might, in particular, be legitimate to defer a decision on ECAT leave until after a decision is made on asylum when the asylum claim is wholly unrelated to the trafficking claim. In such a case, Article 14(1)(a) does not oblige the respondent to grant ECAT leave to the victim. Where the victim’s asylum claim is trafficking related, however, the only permissible course is to grant ECAT leave whilst that claim (and any appeal) remains pending. The deferral of that consideration is unlawful and the administrative convenience upon which it is apparently based cannot amount to any justification for such an action.

Whilst I accept, therefore, that the respondent is entitled to submit that she has altered her policy in order to address the mischief identified in JP & BS [R (JP & BS) v SSHD [2019] EWHC 3346; [2020] 1 WLR 918], I consider her defence to the applicant’s discrimination claim to fall at an earlier hurdle. She treated the applicant differently because she was an asylum seeker, by deferring the decision on her ECAT leave application until after the decision on her protection claim. But she was instead required to grant ECAT leave to the applicant whilst that protection claim was pending. The respondent cannot, in my judgment, be heard to submit that her unlawful decision to defer the ECAT leave decision was nevertheless a legitimate action, aimed at furthering administrative convenience. An action which is unlawful cannot, to my mind, be said to justify a difference in treatment.”

Conclusion

The gains afforded to victims of trafficking by the KTT judgment have now been undone by the new trafficking policy published on 30 January 2023, along with the new appendix to the immigration rules. The new policy further narrows the already overly restrictive approach of its predecessors, ensuring that very few individuals will be able to benefit from ECAT leave in future. Going forward extensive medical, supporting and country evidence will likely be needed to succeed under the new provisions.

Discretionary leave decisions made before 30 January 2023 are still in existence and these are challengeable under version 5 of the discretionary leave policy. Where they have been agreements to reconsider decisions made under this policy, the reconsideration should be made under the old discretionary leave policy (this is made clear in the new guidance). It is possible in these cases to seek leave with reference to KTT.

With thanks to Priya Solanki of One Pump Court Chambers, who was instructed in this case.

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