XY v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lane |
| Judgment Date | 23 January 2024 |
| Neutral Citation | [2024] EWHC 81 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: AC-2022-LON-003428 |
[2024] EWHC 81 (Admin)
Mr Justice Lane
Case No: AC-2022-LON-003428
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr C Buttler KC, Ms Z McCallum (instructed by Asylum Aid) for the Claimant
Ms C McGahey KC, Mr W Irwin (instructed by Government Legal Department) for the Defendant
Hearing dates: 29 and 30 November 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 23 January 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
As a matter of public law, what is a Secretary of State able to do, faced with a judicial declaration on the interpretation of his or her published policy, if he or she does not agree with that interpretation? That important question lies at the heart of the claimant's challenge. The present case also raises issues involving the duty of candour in judicial review and the approach to claims of privilege or irrelevance as reasons for withholding material from the other party.
The policy in question concerns article 14 of the Council of Europe Convention on Action against Trafficking in Human Beings 2005 (“ECAT”). Article 14(1)(a) of ECAT states that each party to the Convention “shall issue a renewable residence permit to victims … (a) the competent authority considers that their stay is necessary owing to their personal situation”.
As is now well known, ECAT has not been incorporated into domestic law. Whether and, if so, how to comply with article 14(1)(a) is, accordingly, a matter for the defendant. The defendant has a published policy, “Discretionary Leave Considerations for Victims of Modern Slavery,” which directs the defendant's officials to make decisions regarding leave to remain in the United Kingdom as a victim of modern slavery in accordance with article 14(1)(a) of ECAT. The version with which we are concerned is 4.0, published on 8 December 2020. This provides that discretionary leave may be considered under the policy where the Competent Authority has made a positive conclusive grounds decision that an individual is a victim of modern slavery and they satisfy one of a number of criteria, which for our purposes is that leave is necessary owing to the victim's personal circumstances. After setting out a non-exhaustive list of what might constitute such personal circumstances, the policy provides that, additionally, “a person may provide evidence from a healthcare professional that they need medical treatment. In these cases, consideration should be given to whether it is necessary for the treatment to be provided in the UK”.
R (KTT) v SECRETARY OF STATE FOR THE HOME DEPARTMENT [2021] EWHC 2722 (ADMIN)
In R (KTT) v the Secretary of State for the Home Department [2021] EWHC 2722 (Admin), Linden J held that the defendant's policy “overwhelmingly demonstrates a commitment to take decisions as to discretionary leave in accordance with ECAT…” (paragraph 79). Linden J held that the relevant question under article 14(1)(a) was whether the victim's “stay” was necessary owing to their personal situation, not whether the grant of the residence permit itself was necessary. At paragraph 92, Linden J accepted the claimant's submission that the fact that a victim is pursuing an asylum/protection claim based on fear of re-trafficking may be an aspect of the victim's personal situation for the relevant purposes, given that this interpretation would be in accordance with the aims of ECAT. This was so, notwithstanding that section 77 of the Nationality, Immigration and Asylum Act 2002 prevents a person from being removed from the United Kingdom while their claim for asylum is pending.
Following the handing down of his judgment in KTT, Linden J made an order on 25 October 2021 (sealed on 2 November 2021). The order included a declaration in the following terms:-
“1. On their true construction, versions 2, 3 and 4 of the Defendant's policy “Discretionary Leave for Victims of Modern Slavery” (“the MSL policy”) require the defendant's decisions on the grant of leave to remain to be made in accordance with Article 14(1)(a) ECAT, which requires the grant of a residence permit to a confirmed victim of modern slavery if their stay in the UK is necessary owing to their personal situation.
2. The statutorily-protected stay in the United Kingdom of a confirmed victim of trafficking pending the resolution of an asylum claim made by them which is based on a fear of being re-trafficked is capable of constituting a stay which is necessary owing to their personal situation within the meaning of Article 14(1)(a) ECAT.”
The order also contained a provision whereby the defendant's decision to refuse the claimant leave to remain under the MSL policy was quashed and the defendant required to make a fresh decision on the claimant's application for leave to remain under the MSL policy within 28 days of the order.
The central issue in the present case concerns the defendant's response to the judgment and order in KTT. The claimant contends that the defendant's public stance was that the policy contained in the published document Version 4.0 remained in force, with the consequence that the defendant's officials would be assumed to make decisions in accordance with the policy, as interpreted by Linden J and set out in his declaration. Instead, the claimant contends that the defendant operated what he describes as a secret policy, whereby the defendant's officials were instructed to make decisions in cases where confirmed victims of modern slavery were seeking asylum on the grounds of a fear of re-trafficking, but were told not to serve those decisions. This, the claimant asserts, is contrary to the rule of law.
The defendant's position, in essence, is that the defendant merely paused decision-making in respect of those affected by the judgment in KTT, until there was no longer any prospect of the defendant challenging Linden J's order. That prospect disappeared when permission to appeal to the Supreme Court was refused by that Court, in respect of the judgment of the Court of Appeal which had upheld Linden J's order. The defendant contends that this was a lawful approach.
If, however, the approach was unlawful, the claimant asserts that he suffered a breach of his Article 8 ECHR rights, both substantively and procedurally. He further asserts that the defendant's actions violated Article 14 ECHR.
It is now necessary to examine the claimant's case in more detail.
THE CLAIMANT
The claimant is a national of Albania, born in September 2001. His modern slavery account was that, at the age of 16, he was enslaved in Albania by a gang who kidnapped him and forced him to sell drugs. The resultant trauma has caused the claimant to suffer anxiety and depressive disorder, as well as to exhibit symptoms of post-traumatic stress disorder. The claimant takes antidepressant medication and sleeping tablets and is in receipt of psychological therapy.
The claimant arrived in the United Kingdom in 2018 and claimed asylum. He had been enabled to flee Albania with the assistance of his uncle. Following his asylum claim, the claimant was placed into foster care, followed by shared accommodation.
The claimant began a long course of therapy in February 2020. In November 2020, he was diagnosed with post-traumatic stress disorder. The claimant continued with his therapy until May 2021, when the service was terminated because of a lack of funding.
On 21 July 2021, the Single Competent Authority promulgated a positive conclusive grounds decision, accepting that the claimant had been subjected to modern slavery. In April 2022, the claimant recommenced psychological therapy. On 21 June 2022, his counsellor reported that the claimant was a very vulnerable young man who had been struggling to manage his mental health over a number of years. The counsellor concluded that it was unlikely that there would be any improvement in the claimant's mental well-being until such time as the claimant felt safe and stable in the United Kingdom.
THE JUDICIAL REVIEW
In July 2022, the claimant's solicitors sent a pre-action protocol letter to the defendant, challenging the defendant's delay in determining the claimant's asylum claim.
On 1 December 2022, the claimant commenced the present judicial review proceedings. These sought to challenge what was then the “ongoing refusal since 21 July 2021 (the date of the claimant's conclusive grounds decision) to make a decision on whether the claimant is entitled to leave to remain as a victim of modern slavery…”. It was said that there was evidence that the ongoing threat of removal of the claimant was impeding his psychological recovery and aggravating his mental ill health. At the time, the claimant's appeal against the refusal of his asylum claim was pending before the First-tier Tribunal.
Paragraph 3 of the statement of facts and grounds asserts that the defendant appeared to be operating an unpublished, blanket policy. She would not make a decision on a confirmed victim's entitlement to ECAT leave until the defendant had considered the implications of the judgment in KTT. Paragraph 5 asserted that there was some 600 confirmed victims of trafficking in the United Kingdom who had claimed asylum and who would in principle be entitled to ECAT leave in consequence of the judgment in KTT. Amongst other matters, a declaration was sought by the claimant that the defendant's unpublished policy was unlawful.
On 23 December 2022, the defendant filed an acknowledgement of service. This contained the statement the defendant had agreed to grant the claimant discretionary leave for a period of 12 months. On that basis, the...
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