K, R (on the application of) v Secretary of State for the Home Department

A decision whether to grant a residence permit to a person already accepted as a victim of trafficking is a consequential decision, distinct from the primary decision whether the person was trafficked. Judicial review is therefore ordinarily conducted on Wednesbury principles, although the court may apply anxious scrutiny where a fundamental right is directly in issue. A published policy may lawfully require personal circumstances to be compelling and may require a formal request from the police before leave is granted for investigative co-operation. The Trafficking Convention is not directly enforceable domestically, but a policy purporting to implement it is unlawful if materially inconsistent with its terms.

K, a Ghanaian national and accepted victim of trafficking, challenged the refusal of the Competent Authority to grant him a residence permit under Article 14 of the Council of Europe Convention on Action against Trafficking in Human Beings. The refusal relied on the availability of medical treatment in Ghana and the absence of a formal police request for his continued presence.

He alleged failure to follow published policy, unlawful policy requirements, breach of Article 4 of the European Convention on Human Rights, and failure to consider historic injustice. The challenged decision was a fresh decision made after earlier judicial review proceedings and replaced an earlier decision based on historic trafficking.

1. Claim dismissed. The decision of 16 January 2015 was lawful and was not susceptible to legitimate challenge.
2. The court’s task was to review the legality of the specific decision on the material before the decision-maker. Later evidence could not ordinarily be used to establish that the earlier decision was unlawful. This principle applied to later medical evidence, expert evidence and subsequent events concerning police co-operation.
3. A decision whether a person is a victim of trafficking is a primary decision engaging the fundamental rights and protections arising under the Trafficking Convention. A decision whether an accepted victim should receive a residence permit is secondary or consequential. It is not itself ordinarily a decision concerning a fundamental right. The appropriate review was therefore the Wednesbury approach, although the court also considered the claim applying anxious scrutiny and reached the same result.
4. The Defendant was entitled to require that personal circumstances be “compelling” or “so compelling” before discretionary leave was granted. Article 14(1) requires the Competent Authority to consider whether the victim’s stay is necessary because of personal circumstances or for co-operation with investigation or criminal proceedings. It did not prescribe the method by which that evaluative judgment had to be made. The policy was consistent with Article 14(1) and the Explanatory Report’s reference to circumstances making it unreasonable to compel departure.
5. The requirement in the published guidance for a formal police request was also lawful. It provided a practical means by which the Defendant could determine whether a victim’s presence was necessary for investigation or prosecution. The absence of such a request could therefore be relied upon, particularly where the case had already been referred to the police and they had had a substantial period in which to make a request.
6. The decision-maker had adequately considered the medical report and the individual circumstances. He was not required to reproduce every matter in the evidence or expressly address every passage. The earlier police referral meant that the case was materially different from R (FM) v Secretary of State for the Home Department, where no referral had been made before the residence decision.
7. The Trafficking Convention was not directly incorporated or directly enforceable in domestic law. It remained relevant because the Defendant’s policies purported to give effect to it, and inconsistency between the policies and Article 14 could constitute a justiciable error. No such inconsistency was established.
8. The historic-injustice principle in EK (Tanzania) concerned immigration decisions, not the NRM residence-permit decision under challenge. Ground (4) therefore failed.