Upper Tribunal gives helpful interpretation of guidance on victims of trafficking
Date posted: 23 February 2022
Rachael Lenney, a solicitor in our immigration department, represented a victim of trafficking in an important reported case in the Upper Tier Tribunal. Although the legal claim did not succeed there was some helpful interpretation of Home Office guidance on the granting of discretionary leave to remain to victims of trafficking. Rachael Lenney has provided the following case note.
The Applicant, SV, is a victim of trafficking. As a result of her trafficking experience she has complex post-traumatic stress disorder, and requires a three-phase approach to treatment over a lengthy period. The International Society for Traumatic Stress Studies guidelines for CPTSD provides that such treatment should (1) focus initially on stabilisation through the understanding and control of symptoms, (2) followed by work on processing of traumatic memories and, (3) finally, a phase of social and psychological integration. In evidence, the esteemed 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 SV’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’.
By reference to Professor Katona’s opinion and undisputed delays in accessing treatment on the NHS (in SV’s case well over one year), she challenged the lawfulness of the Secretary of State’s (‘SSHD’) decision not to grant her more than 30 months Discretionary Leave to Remain (DLR) as a longer period was necessary to meet her treatment needs.
In June 2019, SV received a positive conclusive grounds decision with a letter confirming she would not be granted DLR. Following a successful judicial review, the SSHD agreed to remake the decision by reference to her treatment needs for complex PTSD. In 2020, following a further judicial review, brought on delay grounds, the SSHD granted 12 months DLR to “allow her to access the 3 phased intervention treatment recommended”. That decision was itself challenged given delays within the NHS before treatment could begin. In response, in 2021, the SSHD granted 30 months’ DLR beginning from the first grant in 2020.
SV also argued that the SSHD policy guidance ‘Discretionary leave considerations for victims of modern slavery” v. 4.0, published on 8 December 2020’ was unlawful, specifically the section directing caseworkers to grant no more than 30 months DLR unless they can ‘distinguish’ the individual’s circumstances from ‘other cases’ to a ‘high degree’, and a similar section which directed them to impose a ‘high’ threshold where ILR is sought. SV argued this does not give effect, as intended, to deciding what is necessary under the European Convention Against Trafficking (“ECAT”), and otherwise was too unclear and imprecise to be applied without resulting in arbitrary decision making.
Unusually, the hearing took place before a panel of three Upper Tribunal Judges (Lane J (the President), Allen UTJ, and Smith UTJ). The application for judicial review was refused on all grounds. The headnote reads:
(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  UKSC 37 (“A”) and R (BF Eritrea) v Secretary of State for the Home Department  UKSC 38 (“BF (Eritrea)”).
(2) …. 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  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?
In short, this means that for as long as the SSHD intends to give effect to ECAT via policy guidance, the lawfulness of such guidance falls to be determined according to the principles set out in A and BF (Eritrea). As the Upper tribunal was at pains to emphasise ‘This does not, of course, mean that earlier decisions, in particular PK (Ghana), were wrong. In PK (Ghana) by directing her caseworkers to ask whether a victim’s circumstances were “compelling”, instead of whether they were such as to make it “necessary” to grant discretionary leave, the respondent plainly fell foul of the Gillick test, as articulated and explained by the Supreme Court’ in A and BF .
Regarding the SSHD’s guidance note in this case, the Upper Tribunal held that the impugned sections were lawful. But, it is useful to highlight (as this is not recorded in the headnote) that the Tribunal helpfully interpreted the sections relating requests for more than 30 months’ DLR and ILR. At  it said: ‘the phrase “distinguished to a high degree…”, like the phrase “is a high one” in the passage concerning ILR, does no more than to indicate to the caseworker that there needs to be a good reason before granting a longer period than 30 months.’ This may be useful to practitioners as information in the public domain shows that in practice a small number of trafficking victims are granted any form of DLR, that even less are granted more than 12 months’, and only a handful have ever been granted 30 months’ DLR.
Counsel instructed in this matter was Ali Bandigani of Garden Court Chambers and we worked closely with colleagues at ATLEU [a charity providing legal advice and support to survivors of trafficking and slavery].