The UK High Court has declared the Home Office’s trafficking policy unlawful for putting in place barriers to identification of victims of modern slavery.
The decision was handed down in the joint claim of two Albanian women, JP and BS, who challenged the decision of the Secretary of State for the Home Department not to determine their applications for a residence permit under Article 14(1) of the Council of Europe Convention on Action against Trafficking in Human Beings of 16 May 2005 (‘ECAT’) before determining their claim for asylum.
JP was trafficked to the UK in August 2016 to pay off her husband’s gambling debts. She was forced to have sex with men over the course of three weeks. She has been taking anti-depressants since September 2017 and has found it difficult to engage with mental health counsellors due to the uncertainty of her immigration status.
In 2014, BS was deceived by a man whom she considered to be her boyfriend, but who was a trafficker. She travelled to Italy, where she was forced to have sex with numerous men every day for two years. In 2016, she was trafficked to the UK. She was forced to have unprotected sex and fell pregnant, but was forced to have an abortion. Like JP, BS was put on anti-depressants and moved between counselling facilities.
Both JP and BS experienced the same problems while applying for asylum. Both, first of all, secured a 45-day recovery and reflection period, during which they could avail of safe accommodation and support as potential victims of trafficking. Following that, they both secured full interviews. The Secretary of State issued a letter stating that there would be a six-month delay in respect of a decision.
Following that, they received another letter purporting a further delay in processing their applications. By then Deighton Pierce Glynn Solicitors (‘DPG’) wrote a pre-action protocol letter notifying the Secretary of State that in delaying JP and BS’s applications they were acting unlawfully. Subsequently, the Secretary of State replied contending that the decision was subject to the outcome of a Court of Appeal case called PK (Ghana).
Following another delay, JP and BS applied for judicial review proceedings. A few days later, the Secretary of State sent letters to them stating that their applications had been refused.
On 13 March 2019, the Court granted JP and BS permission to apply for judicial review.
Legal counsel for JP and BS, Deighton Pierce Glynn Solicitors (‘DPG’) argued three grounds of appeal:
The first ground of challenge in each claim was that the Secretary of State had failed to make a decision in accordance with her policy in relation to ECAT leave for each of JP and BS. This policy, called “the scheduling rule”, was introduced in August 2018 and it allows the Secretary of State not to make a decision on ECAT leave in respect of a victim of trafficking unless and until it is determined that the victim does not qualify for any other form of leave.
The effect of this was that a victim of trafficking who was also an asylum seeker would not have their application for ECAT leave determined until their application for asylum had been granted and then a decision on refugee leave had been made.
Mr Justice Murray ruled that this ground was extant as far as each substantive claim was concerned but may be of service when it came to deciding upon costs in due course.
The second ground of challenge was that the scheduling rule and, as a consequence, the JP Decision and the BS Decision, were incompatible with the obligations of the UK under ECAT. Mr Chris Buttler, instructed by DGP, submitted that the scheduling rule prevented the Secretary of State, on a blanket basis, from considering ECAT leave until a decision is made on the related asylum application. This blanket limitation was not authorised by ECAT.
ECAT required that a residence permit must be granted if the relevant authority considered that the victim’s stay was necessary owing to the victim’s personal situation or for the purpose of their cooperation with the authorities in investigation or criminal proceedings.
Mr Buttler submitted that Article 14(5) of ECAT expressly contemplated that a victim of trafficking may be granted leave before her asylum claim is determined.
In defence, Ms Joanne Williams, instructed by the Government Legal Department, noted that the legality of the scheduling rule was considered by the Upper Tribunal in the case of VHH. She submitted that UTJ Kebede’s reasoning in that case was compelling and correct and she invited this court to take the same view.
She contended that the rationale for the rule was two-fold: firstly, it was in the best interests of the applicant and was more advantageous to have it determined first and, secondly, it enabled the decision-maker to consider one claim against one set of criteria.
On this ground, Mr Justice Murray held that the scheduling rule, as currently formulated, was not consistent with the obligations of the UK under Article 14(1) of ECAT. He submitted that considering an asylum claim before determining ECAT leave, in practice, would lead to significant delay and there was a material risk that the victims would be subjected to inferior support.
In coming to this conclusion, he noted how JP had waited 10 months and how BS had waited 11 months since obtaining the 45-day recovery and reflection period and subsequently being refused asylum in the end.
The third ground of challenge was that the scheduling rule was incompatible with Article 14 of the European Convention of Human Rights (‘ECHR’). Article 14 provides for the protection against discrimination when it comes to the enjoyment of the rights and freedoms set out in the Convention.
Mr Justice Murray, having considered the analogy of Mostyn J in the case of K, accepted that the status of being an asylum seeker falls within “other status” for the purposes of Article 14 of the ECHR. Hence, Mr Justice Murray was able to rule that the scheduling rule was incompatible with the ECHR.
Click here for the decision in full.