PK(Ghana) v Secretary of State for the Home Department [2018] EWCA Civ 98

The Court of Appeal has today handed down judgment in PK (Ghana) v Secretary of State for the Home Department [2018] EWCA Civ 98. The decision concerns the UK’s obligations to victims of trafficking who require a residence permit to remain in the UK owing to their personal situation. Like many victims of trafficking, our client PK, has experienced prolonged and severe breaches of his human rights, resulting in long-standing mental and physical health concerns. This appeal proceeded on a discrete point: whether the Secretary of State’s policy guidance gives effect to the UK’s obligations under Article 14(1)(a) of the Council of Europe Convention on action against trafficking in human beings. The Court of Appeal held unanimously that the policy guidance did not and declared it to be unlawful. Summary of the judgment:

• Article 14(1)(a) of the Convention states that a renewable Residence Permit shall be issued to a victim if the individual’s stay in the member state is “necessary owing to their personal situation”. The Court of Appeal found that “necessary” in Article 14(1)(a) has to be seen through the prism of the objectives of the Convention; and the competent authority has to consider whether the person staying in the country is necessary in the light of and with a view of achieving, those objectives.  (44)

• The only relevant objective of the Convention when considering whether an individual’s stay is necessary owing to their personal circumstances is the objective to protect and assist victims of trafficking. The Court of Appeal found that the provision under Article 14(1)(a) does not give the competent authority an open ended discretion as argued by the Secretary of State. Rather, it requires an assessment of whether his stay is necessary for the purposes of protecting and assisting him.  The Court found that the Secretary of State’s Guidance neither requires nor prompts any such engagement with the objectives of the convention and as a result does not reflect the requirements of Article 14(1)(a), and therefore is unlawful.

• The Court went on to consider the Appellant’s argument that the Secretary of State’s Guidance imposes too high a threshold, in that it requires the individual’s personal circumstances to be “so compelling” that they should be granted a period of discretionary leave to remain in the UK. Again, the Court of Appeal found in favour of the Appellant, finding that there is a real – indeed, a very substantial – risk that, on the basis of the policy guidance the decision maker would apply a threshold different from and higher than that required by the Convention (57).

• Additionally, and helpfully, the concession originally given by the Secretary of State in the case of R (Atamewan) v Secretary of State for the Home Department [2013] EWHC 2727 (Admin) is repeated in this Judgement, that being that the Secretary of State’s policy guidance was intended to, and purported to, give effect to the trafficking convention; and that, if it failed to give effect to the convention, then that would be a justiciable error of law. (34).

Any new guidance should make clear that a renewal Residence Permit should be issued to a victim of trafficking where their stay is necessary in order for the UK to meet its objective under the Trafficking Convention to provide protection and assistance to that victim. The Guidance should also make clear that the test is simply one of necessity in order to meet that objective and that there is no additional requirement on the individual to show compelling circumstances. The Appellant was represented by Nina Rathbone Pullen of our Public Law Department at Wilson Solicitors LLP; and Martin Westgate QC and Catherine Meredith of Doughty Street Chambers.