PK (Ghana), R (On the Application Of) v The Secretary of State for the Home Department

Article 14(1)(a) of the Council of Europe Convention on Action against Trafficking in Human Beings 2005 requires the competent authority to identify a trafficking victim’s relevant personal circumstances and decide whether residence is necessary to further the Convention’s objectives, particularly the victim’s protection and assistance. It does not confer an open-ended discretion.

Domestic guidance fails to implement that obligation where it neither directs the decision-maker to consider the Convention’s objectives nor reflects the applicable threshold. Requiring “compelling” personal circumstances creates a substantial risk that decision-makers will apply an exceptional and materially higher threshold than the Convention requires.

The appellant, a Ghanaian national, had been conclusively identified by the Secretary of State as a victim of trafficking. He suffered from serious physical and psychiatric conditions. The Secretary of State nevertheless refused him discretionary leave because his personal circumstances were not considered compelling.

Picken J dismissed his judicial review claim in [2015] EWHC 3668 (Admin), holding that the Secretary of State’s guidance was consistent with article 14(1)(a) of the Council of Europe Convention on Action against Trafficking in Human Beings 2005. Permission to appeal was confined to whether the “compelling personal circumstances” criterion properly reflected the Convention’s requirement to grant a residence permit where the competent authority considered residence necessary owing to the victim’s personal situation.

1. Appeal allowed. The Secretary of State’s guidance failed properly to reflect the obligation imposed by article 14(1)(a) of the Council of Europe Convention on Action against Trafficking in Human Beings 2005. The High Court’s order and the Secretary of State’s decisions of 10 October 2013 and 16 January 2015 were to be quashed. A declaration was to be made that the relevant guidance was unlawful.

2. Article 14(1)(a) does not confer an open-ended discretion. Such a construction would deprive the provision of substantive effect because a state already possesses a residual power to permit a foreign national to remain. A victim satisfying the Convention criterion acquires a right to a residence permit irrespective of immigration status or other rights.

3. “Necessary” means required to achieve a desired purpose, effect or result. The Convention must be construed purposively. The competent authority must therefore identify the victim’s relevant personal circumstances and assess whether residence is necessary to achieve the Convention’s objectives, particularly the protection and assistance of trafficking victims.

4. The reference to what the competent authority “considers” means that the authority must assess whether the Convention criteria are satisfied in the individual case. It does not permit a state to determine the scope of those criteria for itself.

5. Article 12 prescribes assistance available to victims while they are in the country but does not create an additional obligation to permit residence for full recovery. Article 14 governs when a state must permit a trafficking victim to reside lawfully within its territory.

6. The guidance did not require or prompt consideration of whether residence was necessary for the protection and assistance of the victim or another Convention objective. Its requirement for “compelling” or “so compelling” circumstances also carried, particularly in the immigration context, the connotation of an exceptional and very high threshold. It therefore created a substantial risk that decision-makers would apply a materially higher threshold than article 14(1)(a) requires.

Hickinbottom LJ delivered the judgment. Singh and Patten LJJ agreed.

1. Court of Appeal (Civil Division): The appeal was allowed in [2018] EWCA Civ 98. The High Court’s order was to be quashed, the relevant policy guidance declared unlawful, and the Secretary of State’s decisions quashed.

2. High Court, Queen’s Bench Division (Administrative Court): Picken J dismissed the judicial review claim in [2015] EWHC 3668 (Admin), holding that the guidance was consistent with article 14(1)(a) of the Council of Europe Convention on Action against Trafficking in Human Beings 2005.