Upper Tribunal (Immigration and asylum chamber), 2021-12-07, [2022] UKUT 00039 (IAC) (R (on the application of SV) v Secretary of State for the Home Department (ECAT: lawfulness of policy guidance))
| Jurisdiction | UK Non-devolved |
| Judge | The Hon. Mr Justice Lane, President, Upper Tribunal Judge Allen, Upper Tribunal Judge Smith |
| Status | Reported |
| Date | 07 December 2021 |
| Published date | 11 February 2022 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | ECAT: lawfulness of policy guidance |
| Hearing Date | 17 September 2021 |
| Appeal Number | [2022] UKUT 00039 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
R (on the application of SV) v Secretary of State for the Home Department (ECAT: lawfulness of policy guidance) [2022] UKUT 00039 (IAC)
THE IMMIGRATION ACTS
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Heard at Field House |
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On 17 September 2021 |
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Further written submissions |
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On 19 and 26 October and 4 November 2021 |
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Before
THE HON. MR JUSTICE LANE, PRESIDENT
UPPER TRIBUNAL JUDGE ALLEN
UPPER TRIBUNAL JUDGE SMITH
Between
THE QUEEN
on the Application of
SV
(ANONYMITY DIRECTION MADE)
Applicant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the applicant: Mr A. Bandegani, instructed by Wilson Solicitors LLP
For the respondent: Ms E. Wilsdon, instructed by the Government Legal Department
1) The fact that:
(i) the European Convention Against Trafficking in Human Beings (“ECAT”) is not a part of domestic law; but
(ii) the Secretary of State for the Home Department has decided to give effect to ECAT by means of a policy,
is not a reason for a court or tribunal to refuse to examine the lawfulness of that policy by reference to the judgments in R (A) v Secretary of State for the Home Department [2021] UKSC 37 (“A”) and R (BF Eritrea) v Secretary of State for the Home Department [2021] UKSC 38 (“BF (Eritrea)”).
(2) The ECAT and the policy guidance are not to be read together as merely a single policy of the respondent, which may be judicially scrutinised in its entirety and declared unlawful if found in any respect to be internally inconsistent. Despite not being incorporated into domestic law, ECAT is not itself a policy of the respondent, whose terms can be changed or abrogated by her. ECAT remains an international set of obligations. Accordingly, when seeking to establish the appropriate public law mechanism for assessing the lawfulness of the respondent’s policy guidance, it is essential to recognise that the respondent has chosen to give ECAT normative effect, with the policy guidance being a set of instructions to her caseworkers on how to make decisions that give effect to ECAT.
(3) This means that the lawfulness of the Secretary of State’s policy instructions to caseworkers on how to make decisions that give effect to ECAT falls to be determined by reference to the test (based on Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112), which was approved in A and BF (Eritrea), for assessing the lawfulness of policies that give guidance on the meaning and effect of the law; namely, can the policy be operated in a lawful way; or does it impose requirements which mean that a material and identifiable number of cases will be dealt with in an unlawful way?
JUDGMENT
A. INTRODUCTION
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The applicant is a citizen of Albania. She claims to have arrived in the United Kingdom on 28 March 2014 and was first referred into the respondent’s National Referral Mechanism (NRM) on 14 April 2014. The referral resulted in a positive reasonable grounds decision but a negative conclusive grounds decision on the issue of whether the applicant was a victim of modern slavery.
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The applicant also claimed asylum but that was refused and a subsequent appeal was dismissed.
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The applicant was again referred to the NRM in May 2016, receiving a positive reasonable grounds decision on 16 June 2016 and, this time, (after judicial review proceedings) a positive conclusive grounds decision on 4 June 2019.
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On 3 June 2019, the respondent decided not to grant the applicant discretionary leave to remain in the United Kingdom. That decision was, however, challenged and on 25 September 2020, the respondent granted the applicant twelve months’ discretionary leave.
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That decision was itself challenged and on 18 March 2021, the respondent granted the applicant 30 months’ discretionary leave. The 30 months were stated to run from the date of the initial grant of discretionary leave on 25 September 2020.
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The applicant has been diagnosed with complex post-traumatic stress disorder (CPTSD). The International Society for Traumatic Stress Studies guidelines for CPTSD recommend a three-phase approach to treatment, focussing initially on stabilisation through the understanding and control of symptoms, followed by work on processing of traumatic memories and, finally, a phase of social and psychological integration.
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The decision of 18 March 2021 stated that 30 months’ discretionary leave had been granted “to allow [the applicant] to access the 3 phased intervention treatment recommended” in a psychiatric report dated 25 September 2020. The leave was said to have “been granted in accordance with the Modern Slavery DL policy”.
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In response to the earlier decision to grant twelve months’ leave, those acting for the applicant had supplied the respondent by letter dated 6 January 2021 with a medical report of Professor Katona. In that report, Professor Katona stated that the three stage treatment process would vary from each person according to their specific mental health needs. In order for therapy to be effective, the “key principle” was that the individual concerned “has sufficient sense of safety and security”. Professor Katona considered that the applicant’s treatment was likely to take “well over a year from its inception” and that “unlimited leave to remain would make the best clinical sense” for the applicant. The treatment would involve “considerably more than 25 weeks” and the delays in granting her leave, together with the limited nature of the leave, had created uncertainty and continuing fear of returning to Albania, which Professor Katona considered impeded the creation of subjective safety and security for her.
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The covering letter opined that Professor Katona’s report supported the submission on the applicant’s behalf that the grant of twelve months was insufficient in her case. The letter also said that the report highlighted a situation “in which there is a failure to consider the individual circumstances of the case in only granting the applicant twelve months’ leave to remain, illustrating the unlawful nature of the DLR policy which leads to uncertainty and arbitrary decision-making – rendering the policy unlawful”.
B. EUROPEAN CONVENTION AGAINST TRAFFICKING IN HUMAN BEINGS / RESPONDENT’S POLICY: DISCRETIONARY LEAVE CONSIDERATIONS FOR VICTIMS OF MODERN SLAVERY (VERSION 4.0)
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The applicant’s judicial review of the decision of 25 September 2020 became (through the filing of amended grounds on 25 March 2021) a challenge to the decision of 18 March to grant 30 months’ leave to remain. It does so by reference to the respondent’s policy “Discretionary leave considerations for victims of modern slavery”, which is said to be unlawful, in that it fails properly to reflect, or give effect to, the European Convention against Trafficking in Human Beings 2005. This Convention (hereafter ECAT), entered into by the member States of the Council of Europe including the United Kingdom, is an international treaty, which binds this country as a matter of international law. ECAT has not, however, been incorporated by legislation into domestic law.
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Under Article 12(3) of ECAT, the State must provide necessary medical or other assistance to victims lawfully resident within its territory who do not have adequate resources and need such help. Article 12(5) requires States to take measures, where appropriate and under the conditions provided for by its internal law, to co-operate with non-governmental organisations, other relevant organisations or other elements of civil society engaged in assistance to victims. Article 12(7) requires services to be provided on a consensual and informed basis, taking due account of the special needs of persons in a vulnerable position.
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For our purposes, the key provision of ECAT is Article 14:-
“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.
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.”
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The Explanatory Report to ECAT has this to say about Article 14:-
“182. The two requirements laid down in Article 14, paragraph 1, for issue...
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