In accordance with the conclusions in R (KTT) v. Secretary of State for the Home Department  EWHC 2722 (Admin), the Upper Tribunal has confirmed that a recognised trafficking victim who is also seeking asylum should have been granted permission to stay (leave to remain) while their asylum claim was pending.
In this case, R (on the application of SSA (Ethiopia)) v SSHD 2021-LON-001894, the tribunal made it clear that the asylum claim need not be entirely based on concern about being trafficked again in order to qualify for leave under ECAT, as long as the concern is mentioned as one of the reasons the person fears returning to their country of origin. The new policy guideline on temporary authorization to remain for victims of human trafficking is also taken into account in this post.
Since she supported the Oromo Liberation Front, SSA was persecuted in her own Ethiopia (OLF). Due of her fear of being arrested, SSA worked as a domestic worker in Saudi Arabia under abusive working conditions. She wanted to travel to Ethiopia to see her sick brother after a few years. She was detained and severely tortured after she got back. Eventually, she was able to escape and returned to her job in Saudi Arabia. SSA was transported to the UK in 2018 on a domestic worker visa by her Saudi employer. When the police found out about her abusive working conditions, they took her out of her employer’s home.
Later, SSA requested refuge in the UK. SSA admitted to being exploited in Saudi Arabia during the screening interview and said she feared being killed in Ethiopia because of her past experiences and support for the OLF. She also mentioned that she still feared her Saudi employer in a witness statement for seeking asylum. This was provided to the Home Office by her legal counsel together with a statement of further grounds under Section 120 of the Nationality, Immigration, and Asylum Act of 2002, which reaffirmed her concern about being exploited again upon her return. SSA won a favourable decision on reasonable grounds after her case was forwarded to the National Referral Mechanism (NRM) for investigation into her human trafficking.
In 2021, SSA was identified as a victim of trafficking. Then, she was denied the option of staying as a victim of trafficking. It was agreed that her protection claim should be taken into account first and that her circumstances did not call for the granting of discretionary leave at this time.
SSA claimed that the Secretary of State violated Article 14(1)(a) of the Convention on Action against Trafficking in Human Beings (ECAT), which calls for the competent authority to issue a residence permit to confirmed trafficking victims if a stay is required “owing to their personal situation,” by refusing discretionary leave.
The Secretary of State stated that SSA’s stay in the UK was unnecessary because her protection application did not have a “real thrust” that was related to trafficking and that her asylum claim was not “substantially” founded on a concern about being trafficked again. The tribunal did not accept this argument:
… I cannot immediately imagine the yardstick by which a decision-maker could gauge whether a protection claim was ‘substantially’ based on a fear of re-trafficking. The only appropriate qualification to what was said in KTT is, in my judgment, that the protection claim must be based in material part on a fear of re-trafficking. It suffices, in other words, for there to be a fear of re-trafficking articulated to the extent that the respondent is bound to consider it. Where a claim is based in material part on a risk of re-trafficking, the principle in KTT is engaged, since the accepted victim of trafficking’s stay is necessary, for the purposes of Article 14(1)(a), whilst their protection claim is pending.
Because SSA failed to make this argument, the Secretary of State contended that the asylum request had nothing to do with trafficking. Instead, it was brought up by her attorneys in the Section 120 notice and later written submissions. The verdict should aid those who may be facing similar arguments since it helps emphasises the value of legal counsel (the legal team in this case has seen numerous defences raise this defence):
I consider there to be a significant risk, however, in attempting to draw a bright line between what is said by an applicant for protection and what is said by their legal representatives. An individual might be at risk on return to their country of origin for a reason that has not occurred to them. It might be asserted, for example, that a risk of persecution in an individual’s home area might reasonably be avoided by relocating to another. The applicant in question has never been to that part of the country and might know nothing about it but their solicitors might, with reference to background material, be able to establish (or at least to submit) that relocation to that part of the country would expose the individual to a risk.
The Secretary of State, according to the SSA, also violated her own discretionary leave policy, which was illegal in and of itself because it did not follow the conclusions of KTT. Discretionary leave for victims of modern slavery policy (DL for VoMS) version 5.0 was released in December 2021, however it was effectively version 4.0 and did not take into account the conclusions of KTT, which had been published in October 2021. It is unclear why a temporary policy could not have been issued for more than a year after the KTT ruling, as doing so would have benefited many acknowledged victims of exploitation.
The Secretary of State stated that the current dispute in KTT prevented the policy from being changed. She had also started to “bespoke consider” each situation on an individual basis. The tribunal rejected this argument as well and stated that “no attempt has been made to amend the policy to reflect what was said by Linden J or by the Court of Appeal and the policy must, it appears to me, be unconstitutional for its failure properly to reflect the requirements of ECAT.”
In accordance with Section 65 of the Nationality and Borders Act 2022, new policy guidance has been provided and will go into effect on January 30, 2023, following the conclusion of the case in KTT (permission to appeal to the Supreme Court was denied on October 28, 2022). Version 5 of the discretionary leave guidance is been superseded by this, while decisions made prior to January 30 will still be subject to appeal under the previous guidance.
Finally, it was decided that delaying consideration of SSA’s discretionary leave constituted discrimination against her as an asylum seeker. The tribunal provided an illustration of a possible situation where such a deferral might be justified. SSA, however, was exempt from this:
… It might, in particular, be legitimate to defer a decision on ECAT leave until after a decision is made on asylum when the asylum claim is wholly unrelated to the trafficking claim. In such a case, Article 14(1)(a) does not oblige the respondent to grant ECAT leave to the victim. Where the victim’s asylum claim is trafficking related, however, the only permissible course is to grant ECAT leave whilst that claim (and any appeal) remains pending. The deferral of that consideration is unlawful and the administrative convenience upon which it is apparently based cannot amount to any justification for such an action.
Whilst I accept, therefore, that the respondent is entitled to submit that she has altered her policy in order to address the mischief identified in JP & BS [R (JP & BS) v SSHD  EWHC 3346;  1 WLR 918], I consider her defence to the applicant’s discrimination claim to fall at an earlier hurdle. She treated the applicant differently because she was an asylum seeker, by deferring the decision on her ECAT leave application until after the decision on her protection claim. But she was instead required to grant ECAT leave to the applicant whilst that protection claim was pending. The respondent cannot, in my judgment, be heard to submit that her unlawful decision to defer the ECAT leave decision was nevertheless a legitimate action, aimed at furthering administrative convenience. An action which is unlawful cannot, to my mind, be said to justify a difference in treatment.
The new trafficking policy and the new appendix to the immigration rules, both released on January 30, 2023, have undone the benefits that the KTT verdict provided to victims of trafficking. The new policy ensures that very few people will be able to take advantage of ECAT leave in the future by further restricting the already excessively restrictive approach taken by its predecessors. In the future, it will probably be necessary to present considerable medical, auxiliary, and national evidence to be successful under the new regulations.
Decisions about discretionary leave made prior to January 30, 2023, are still in effect and subject to review under version 5 of the policy. Where there have been agreements to review decisions made in accordance with this policy, the former discretionary leave policy should be used for the review (this is made clear in the new guidance). In certain circumstances, requesting leave with reference to KTT is possible.
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Tahir Shahab Khan