The Queen (on the application of KTT) v Secretary of State for the Home Department

Hearing dates: 20, 21 July 2021

Approved Judgment

Introduction

The Claimant is a Vietnamese national aged 33. She has a complex immigration history, a brief chronology of which is set out in Annex A to this judgment. But the essential points for present purposes are as follows.

For a period of approximately six months in 2016, the Claimant was forced to work as a prostitute in Vinh City before being brought to this country by people traffickers in November 2016. Her journey took her through various countries where she was also forced to work as a prostitute and, for a period of approximately 21 months after her arrival here, she was subjected to further forced labour including as a prostitute and on cannabis farms. On 17 April 2018 a positive reasonable grounds decision was made in her case and, on 31 October 2019, the Defendant accepted that she was “a victim of modern slavery in Vietnam, Russia, Ukraine, unconfirmed countries, France and the UK during 2015–2018 for the specific purposes of sexual exploitation, forced labour forced criminality” (“the conclusive grounds decision”).

Meanwhile, on 22 January 2019, the Claimant made claims for asylum and human rights protection in this country. Those claims were based on a fear of being trafficked again if she was returned to Vietnam. They had yet to be determined at the time of the conclusive grounds decision. In accordance with her then policy (the so-called “scheduling rule”) which was set out in Version 2 of “Discretionary Leave for Victims of Modern Slavery” (“the MSL Policy”), dated 10 September 2018, on 31 October 2019 the Defendant also decided that any decision as to the grant of discretionary leave — which is referred to in the authorities as ECAT leave but which I will call modern slavery leave, or “MSL” — would be postponed until after the determination of her claim for asylum/protection. In the light of the judgment of Murray J in R (JP and BS) v Secretary of State for the Home Department [2020] 1 WLR 918, however, the decision on MSL was brought forward and, on 21 July 2020, the Claimant's application was refused. The Defendant then reviewed her decision in response to arguments set out in the Claimant's pre-action protocol letter dated 22 July 2020 but, on 17 August 2020, the refusal was maintained. The Defendant's decision of 17 August 2020 (“the Decision”) is the subject of this Claim.

On 23 April 2021, the Claimant's asylum and human rights claims were refused. That decision is the subject of an appeal to the First Tier Tribunal (“the FTT”) which was lodged on 17 May 2021. It is estimated by the Claimant's solicitor that it will take until October 2022 for the appeal to be decided by the FTT.

Outline of the issues

There are now four pleaded grounds of challenge:

i) The way in which Ground 1 is put has undergone some refinement, partly in the light of the Defendant's arguments. But, as expressed in the Claimant's skeleton argument dated 6 July 2021, at least, Ground 1 alleges that the MSL Policy is contrary to Article 14 of the Council of Europe Convention on Action Against Trafficking in Human Beings 2005 (“ECAT”) “because it fails to permit the grant of [MSL] to a victim on the ground that she has to remain in the UK to advance an asylum/protection claim” based on the fear of being re-trafficked if she is returned to her country of origin. On this basis, the refusal of leave in the Claimant's case is said to have been inconsistent with Article 14(1)(a) ECAT and therefore unlawful. Permission was granted in respect of this Ground by Mostyn J on the papers on 23 November 2020. He also adjourned the application for permission in respect of Grounds 2 and 3 to the substantive hearing of Ground 1.

ii) Ground 2 alleges that the MSL Policy is contrary to Article 4, European Convention on Human Rights (“ECHR”). The Claimant's skeleton argument indicated that this Ground is not pursued.

iii) Mr Buttler QC confirmed that Ground 3 is advanced in the alternative to Ground 1. As refined in Mr Buttler's oral submissions, Ground 3 alleges that the Decision was unlawful because the decision-maker failed to take account of, or to address, an argument that the Claimant's mental health would be ameliorated by the grant of MSL and would help her to engage with the therapy which is available here. Mr Buttler confirmed in the course of his submissions that it was also contended that the decision was irrational because one of the premises for the Decision was that the medical assistance needed by the Claimant was available to her in Vietnam, whereas her intention was to remain in this country pending the outcome of her asylum/human rights claims.

iv) Ground 4 alleges, in effect, that the effect of Article 10.2 ECAT was that the Claimant was entitled to MSL from the date of the reasonable grounds decision i.e. 17 April 2018. Permission to add this Ground was granted by Mostyn J on 10 May 2021. It is based on his decision in R (EOG) v Secretary of State for the Home Department [2020] EWHC 33 (Admin) which is currently before the Court of Appeal. Mostyn J therefore stayed Ground 4 pending the determination of that appeal.

The key provision of ECAT for present purposes is Article 14. This states:

“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 co-operation with the competent authorities in investigation or criminal proceedings.” (emphasis added)

2 The residence permit for child victims, when legally necessary, shall be issued in accordance with the best interests of the child and, where appropriate, renewed under the same conditions.

3 The non-renewal or withdrawal of a residence permit is subject to the conditions provided for by the internal law of the Party.

4 If a victim submits an application for another kind of residence permit, the Party concerned shall take into account that he or she holds, or has held, a residence permit in conformity with paragraph 1.

5 Having regard to the obligations of Parties to which Article 40 of this Convention refers, each Party shall ensure that granting of a permit according to this provision shall be without prejudice to the right to seek and enjoy asylum.”

As Murray J said in R (JP and BS) (supra):

“18. ECAT leave is a temporary form of leave that enables a victim of trafficking to receive support (through access to the labour market, education and mainstream benefits) to facilitate recovery from trafficking and/or to facilitate co-operation with a criminal investigation into trafficking. It is generally granted for a period of 30 months, although it can be granted for a longer or shorter period in individual cases. It is not a route to settlement in the UK.”

Under Ground 1, the Claimant's broad case is that she should have been granted MSL in accordance with Article 14(1)(a) ECAT on the basis that it is necessary for her to remain in this country owing to her personal situation i.e. in order to pursue her asylum and human rights claims based on her fear of being re-trafficked if she is returned to Vietnam. This, she argues, is the effect of Article 14.1(a) ECAT as a matter of construction. As, she says, the Defendant's stated policy is to comply with Article 14, the refusal of leave in her case was unlawful.

The evidence is that the Claimant has significant mental health issues as a result of her experiences of being trafficked, including Post Traumatic Stress Disorder and Anxiety and Depressive disorder, for which she takes anti-psychotic and anti-depressant medication. MSL would mean that she was eligible for Universal Credit which, she calculates, is worth more than six times the payments she currently receives. She would also have access to the labour market and to education and training, all of which, she says, would assist to recover from her experiences of trafficking. There is also evidence that her insecure immigration status is contributing to the issues with her mental health.

As matters stand, although sections 77 and 78 Nationality, Asylum and Immigration Act 2002 prevent the Defendant from removing the Claimant until the final determination of her asylum and human rights claims, and although victims of trafficking are exempted from the NHS charging regime (see Regulation 17(1) National Health Service (Charges to Overseas Visitors) Regulations 2015), the effect of the refusal to grant the Claimant MSL is that she is subject to the so-called hostile immigration environment underpinned by the Immigration Act 2014. As Underhill LJ noted in R (Balajigari) v Secretary of State for the Home Department [2019] 1 WLR 4647 at [81]:

“It is…. a criminal offence to be in the UK without leave to remain: see section 24 of the Immigration Act 1971. As regards practical...