In R (SV) v Secretary of State for the Home Department [2022] UKUT 239 (IAC), the Upper Tribunal has held that the European Convention Against Trafficking (ECAT) not being a part of UK domestic law is no reason to refuse to examine the lawfulness of a policy which purports to give effect to ECAT. But the tribunal rejected the specific challenge to the policy in question, which has to do with allowing victims of human trafficking to remain in the UK.

The judicial review

The case was about an Albanian citizen, SV, who arrived in the UK in early 2014 and was referred into the National Referral Mechanism. Her claim to be treated as a victim of human trafficking was at first refused, but she eventually received a positive conclusive grounds decision in 2019.

The Home Office initially declined to grant SV permission to stay, but eventually allowed her 12 months’ discretionary leave. She challenged that decision and secured 30 months, but that still fell short of what she wanted: indefinite leave to remain.

SV challenged the grant of 30 months’ discretionary leave on three grounds:

1. The discretionary leave policy guidance for victims of modern slavery was unlawful as it was too imprecise;
2. The policy guidance was unlawful as being contrary to ECAT, because it imposes a higher threshold for grants of leave beyond 30 months;
3. The Home Office failed to explain its reasons for rejecting the opinion of SV’s psychiatrist, who had recommended that she get indefinite leave to be treated for complex post-traumatic stress disorder.

Relationship between ECAT and the discretionary leave policy

Recent Supreme Court judgments

The Upper Tribunal observed that the relationship between ECAT and the policy guidance had become contentious as a result of three recent Supreme Court judgments.

First, in R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26, the Supreme Court reiterated the principle that unincorporated treaties (like ECAT) do not form part of UK domestic law.

The second and third judgments form a pair. In R (A) v Secretary of State for the Home Department [2021] UKSC 37 and BF (Eritrea) v Secretary of State for the Home Department [2021] UKSC 38, the Supreme Court affirmed the test set out in Gillick v West Norfolk and Wisbech Area Health Authority [1985] UKHL 7 as being the principal test for determining the legality of policy guidance. Broadly speaking, policy is unlawful if it sanctions, positively approves, or encourages unlawful conduct by those to whom it is directed.

The ECAT concession

The Upper Tribunal noted a “concession” which the Home Office had made in several past cases involving ECAT, including PK (Ghana) [2018] EWCA Civ 98. This was that the discretionary leave policy intended to give effect to ECAT; and that, if it failed to do so, then that would be a justiciable error of law.

In SV, though, counsel for the Home Office – as was the case in R (KTT) v Secretary of State for the Home Department [2021] EWHC 2722 (Admin) – argued that this concession could no longer be relied upon in light of R (SC).

As with the High Court in KTT, the Upper Tribunal rejected this argument. In particular, it noted that the previous concessions were made on the basis that ECAT had not been transposed into domestic law: nobody involved was “under any misapprehension in that regard”. In any event, detailed analysis of the policy guidance in KTT revealed that it “overwhelmingly demonstrates a commitment to take decisions… in accordance with ECAT”.

Policy can be examined in light of ECAT

It was, the tribunal said, essential to recognise that the Home Office has given ECAT “normative effect”. The policy guidance gives instructions to caseworkers on how to make decisions giving effect to ECAT.

Thus, whilst recognising that ECAT is not a part of domestic law, the Upper Tribunal considered that the lawfulness of the discretionary leave policy guidance fell to be determined by reference to the test in R (A) and BF (Eritrea).

Discretionary leave policy upheld as lawful

Applying that test to the case in front of it, the tribunal went on to reject the three grounds of challenge to the legality of the discretionary leave policy.

Ground 1 was abandoned at oral hearing. The Upper Tribunal found its formulation fundamentally at odds with R (A) and BF (Eritrea), as there was no requirement for policy guidance to detail how a discretion should be exercised in every case.

Ground 2 was also rejected. Most importantly, there was nothing in ECAT stipulating the length of residence permits, other than that they must be “renewable” (Article 14.1).

Unlike PK (Ghana) – where the policy in question required “compelling” circumstances to grant discretionary leave, contrary to ECAT which stipulates the grant where “necessary” – there was no requirement here to apply a test plainly incompatible with ECAT. References in the policy guidance for cases to be “distinguished to a high degree” to qualify for longer grants of leave did no more than indicate the need for good reasons. Importantly, the words did not require that longer periods of leave need to be shown to be more than merely “necessary”.

Ground 3 failed because there was nothing in the expert’s findings that only indefinite leave to remain would do.

SV’s claim for judicial review was thus dismissed.

Not the final word on ECAT

The Upper Tribunal’s judgment is far from the final word on ECAT in domestic law. Just last week, the Court of Appeal heard the Home Office’s appeal in EOG and KTT v Secretary for the Home Department, where issues relating to ECAT’s role in domestic law were sharply contested. These included the interpretation of ECAT, domestic policy giving effect to it and the justiciability of ECAT. It would be unsurprising if these issues end up in the Supreme Court.