JP, R (On the Application Of) v Secretary of State for the Home Department

A blanket policy deferring consideration of discretionary leave for a recognised trafficking victim until after determination of an asylum claim is unlawful where it operates regardless of the victim’s personal circumstances. Administrative efficiency may justify deciding asylum first in suitable cases, but it cannot justify an inflexible rule which risks leaving victims with inadequate support for a prolonged period. The Secretary of State must consider whether the victim’s circumstances make residence necessary under Article 14(1) of the Council of Europe Convention on Action against Trafficking in Human Beings. The policy also unlawfully discriminated between trafficking victims who claimed asylum and those who did not, because the difference in treatment lacked sufficient objective justification.

JP and BS were recognised victims of human trafficking who had also claimed asylum. The Secretary of State applied a policy under which an application for discretionary leave under Article 14(1) of the Council of Europe Convention on Action against Trafficking in Human Beings would not be considered until the asylum claim had been determined.

Both claimants challenged the individual decisions and the policy. By the hearing, the Secretary of State had refused their applications for discretionary leave and the first ground was no longer live. The central issues were whether the scheduling rule was compatible with Articles 12(1), 12(2) and 14(1) of the Convention, and whether it unjustifiably discriminated against asylum-seeking trafficking victims contrary to Article 14 of the ECHR.

1. Ground 1. The first ground was no longer extant because decisions on ECAT leave had subsequently been made in both cases.
2. Articles 12 and 14 of ECAT. It was lawful in principle to consider an asylum claim before an application for ECAT leave. If refugee leave were granted, no separate ECAT leave decision would be necessary to satisfy Article 14(1). Article 14(5) contemplated that ECAT leave could be granted before an asylum claim was determined, but did not itself prohibit a properly justified sequencing rule.
3. The scheduling rule was nevertheless unlawful in its blanket form. The combination of delay in deciding asylum claims and the 45-day, or in these cases 14-day, limit on basic trafficking support created a material risk that recognised victims would receive only NASS support for several months. Following R (K) v SSHD [2018] EWHC 2951 (Admin), NASS support was insufficient to meet the requirements of Articles 12(1) and 12(2). The Secretary of State therefore had to consider the victim’s personal situation and safety and protection needs when deciding whether deferral was appropriate.
4. The court rejected the submission that the policy was irrational. Administrative convenience and avoiding inconsistent or duplicated decisions were rationally connected to the policy. They did not, however, justify its inflexible application. A case-by-case approach would be a less intrusive means of achieving the administrative objective.
5. Article 14 ECHR. Asylum-seeking and non-asylum-seeking trafficking victims were in analogous positions, and the relevant status fell within “other status”. Applying the proportionality framework discussed in Re McLaughlin [2018] UKSC 48, R (Quila) v SSHD [2011] UKSC 45 and Bank Mellat v HM Treasury (No 2) [2013] UKSC 39, the Secretary of State bore the burden of justification. The objective of administrative convenience was insufficiently supported by evidence, a less intrusive alternative was available, and the effects on vulnerable victims outweighed the objective.
6. Both claims therefore succeeded on Grounds 2 and 3. The parties were invited to agree the consequential order or make written submissions.