The new Home Office policy granting victims of slavery and human trafficking temporary permission to remain was issued on January 30, 2023. It goes along with the newly published, identically titled appendix to the Immigration Rules, which was released on October 18, 2022, and went into effect on January 30, this year.
Who Is Eligible For Authorization To Remain?
If a confirmed victim of trafficking can show one of three conditions, they will now be qualified for leave to remain.
Getting Over Any Physical Or Mental Injuries Caused By The Related Exploitation
An individual may be qualified for permission to stay if they can show through documentation from a licenced medical expert that they require or are receiving treatment. The old policy is still in effect. The phrase “arising from the relevant exploitation” is a new addition to the policy, and it requires that it be made clear that the psychological suffering results from the particular instance of trafficking. Practitioners should make sure that the medical evidence makes a comment on this link because it is a new barrier.
Section 65(2)(a) to (c) of the Nationality and Borders Act of 2022 places further restrictions on the authority to give permission to stay in this situation. Permission to remain won’t be required if a person may receive aid in the nation of which they are a national. It would be wise to provide objective proof that refutes this.
To Demand Reimbursement For The Relevant Exploitation
The official opinion is that pursuing compensation claims remotely will be “quite uncomplicated” in the majority of nations. Provided that’s not the case, a victim may stand a fair chance of getting permission to stay if they can show that they need to be in the UK for the duration of their claim and that their claim is strong.
Collaboration With A Government Agency
The victim or the police may ask for permission to remain in order to help with inquiries into or charges involving their exploitation. It must be established that the person’s physical presence in the UK is required for them to participate with the investigation or prosecution. Once more, if this can be accomplished remotely, it will not be regarded necessary to provide permission to remain.
Child-Related Cases
Children’s situations are one area where the new policy does offer clarification. According to the guideline, the child’s best interests must come first when an application is submitted on their behalf or those of a victim’s dependent children.
A More Stringent Rule?
The new regulations appear to be more stringent than the previous version of the policy, which gave policymakers greater latitude to consider individual circumstances when deciding whether to grant permission to stay. The possibility of re-trafficking could be taken into account in that iteration. It is not included in this policy.
Furthermore, there is no explanation of whether granting temporary leave to people who have unresolved asylum claims is standard procedure. Despite this new policy’s apparent inconsistency, KTT, which was heard by the Court of Appeal, continues to be an authority. Practitioners should continue to challenge on the basis of KTT, for instance, when a person’s request for permission to stay has been denied and their application for asylum is still pending.
The Submission
Any person who receives a ruling affirming they are a victim of trafficking will automatically be given consideration for discretionary leave and will typically be asked to provide supporting documentation.
On the basis of the balance of probabilities, it will be determined if the applicant fits the requirements.
Usually, a leave of absence will not last longer than 30 months; however, this is not always the case. For instance, a leave of absence could be approved for the period necessary to finish a course of therapy. Short-term leaves of absence can be challenging since it frequently takes months for a person to begin receiving public assistance or finding housing, at which point their leave may be close to expiring. The option to grant indefinite leave to continue being a victim of trafficking is still available.
The ability to work, study, and receive public benefits will all be requirements of the authorization to remain. Any renewal request must be submitted using form FLR (HRO).
Conclusion
It was hoped that the new policy would clarify the conditions under which requests for permission to stay would be granted, guarantee that the UK would comply with its obligations under the Council of Europe Convention on Action against Trafficking in Human Beings, and result in a fair and efficient procedure. Unfortunately, the new approach appears to restrict discretion and sidestep problems like granting permission to stay when an asylum claim is still ongoing.
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Written by:
Tahir Shahab Khan
Managing Director