In two separate cases foreign nationals claimed judicial review of decisions of the Secretary of State on the grounds that aspects of her policy on the grant of leave to remain to victims of human trafficking did not comply with the requirements of Chapter III of the Council of Europe Convention on Action against Trafficking in Human Beings 2005 (“ECAT”). Although Chapter III had not been incorporated into domestic law its provisions were set out in government guidance. In the first case the claimant, a national of New Zealand, entered the United Kingdom on a visa which entitled her to work. It was later found that there were “reasonable grounds” to believe she was a victim of trafficking for the purposes of article 10(2) of ECAT. She was given a positive conclusive grounds decision that she was a victim of trafficking ten months later. In the seven months between the expiry of her leave and the conclusive grounds decision, having been refused an extension of her entitlement to work, she was dependent on a subsistence level of support from the state and subject to the “hostile environment” for overstayers and other illegal migrants. She brought a claim for judicial review, contending that the Secretary of State’s policy of not granting discretionary leave to remain to a recipient of a positive reasonable grounds decision was unlawful since it undermined the purpose of identifying and protecting victims of trafficking and was thus contrary to the policy and objects of ECAT by failing to implement the requirement in article 10(2) not to remove such a person from the national territory. In the second case, the claimant, a Vietnamese national who had been brought to the United Kingdom by people traffickers, made claims for asylum and human rights protection based on her fear of being trafficked again if she were returned to Vietnam. The Secretary of State found that there were conclusive grounds for determining that the claimant was a victim of trafficking but, pursuant to her policy at the time, decided that any decision on whether to grant the claimant discretionary leave to remain in accordance with article 14 of ECAT would be postponed until after the determination of her asylum/protection claims. The claimant sought judicial review of that decision, contending that the Secretary of State’s policy was contrary to article 14 of ECAT in so far as it failed to permit the grant of discretionary leave to remain to a victim who had to stay in the United Kingdom in order to advance an asylum/protection claim based on her fear of being re-trafficked if returned to her country of origin. In both cases the claims were allowed.
On appeal by the Secretary of State—
Held, appeal allowed in the first case but dismissed in the second case. (1) ECAT did not require state parties to take any step that might be conducive to its overall objectives. Rather its provisions imposed specific obligations, and, if the Secretary of State’s policy was to comply with ECAT, she was only required to adhere to those provisions. It was plain that ECAT intended there to be a distinction between the positions of potential and confirmed victims, with the former enjoying the minimum level of protection afforded by irremovability and basic assistance under article 12(1) and (2), and the latter enjoying enhanced assistance, together with the possibility of formal residence rights. The government’s guidance had from its original version purported and been intended to give effect to the corresponding provisions of Chapter III of ECAT, and that remained the case (paras 46, 49, 57, 73–75, 93, 94).
(2) Article 10(2) of ECAT was a purely negative obligation providing that during the identification period (ie the interim period between a “reasonable grounds” decision and a final decision) the potential victim of trafficking was not to be removed from the relevant state’s territory. It did not impose an obligation on the United Kingdom to grant leave to remain to potential victims who had not received a positive conclusive grounds decision. Thus article 10(2) did not oblige the United Kingdom to grant leave to remain to potential victims who had only received a positive reasonable grounds decision, and not a positive conclusive grounds decision. It followed that the order of the judge in the first case would be set aside and the claim dismissed (paras 46–49, 52, 57, 93, 94).
(3) It was government policy to meet the requirement in article 14(1)(a) of ECAT to consider whether a grant of discretionary leave was necessary owing to the individual’s personal situation. The natural meaning of the language of article 14(1)(a) required the Secretary of State to consider whether the victim’s stay was necessary owing to their personal situation, not whether the issuing of the residence permit was necessary. In the second case, the Secretary of State, having made a positive conclusive grounds decision in respect of the claimant, had postponed the decision on whether to grant discretionary leave to remain until after her asylum/protections claims had been determined. In those circumstances the judge’s order allowing the claim would be upheld (paras 73–75, 80–81, 93, 94).
Per curiam. It now takes an extraordinary length of time for the Secretary of State to reach both conclusive grounds decisions in the case of victims of trafficking and decisions in asylum claims. The Secretary of State must be aware that solving the problem of those delays would clearly be in the interests of potential and confirmed victims of trafficking, asylum-seekers, the Home Office and the courts (paras 91–92, 93, 94).
Amanda Weston QC and Miranda Butler (instructed by Duncan Lewis Solicitors) for the claimant in the first case.
Chris Buttler QC and Zoe McCallum (instructed by Duncan Lewis Solicitors, Birmingham) for the claimant in the second case.
Robin Tam QC, William Irwin (in the first case) and Emily Wilsdon (in the second case) (instructed by Treasury Solicitor) for the Secretary of State.
Ayesha Christie (instructed by Freshfields Bruckhaus Deringer LLP) for the Aire Centre, intervening.