EOG (Anonymity Order Made) v Secretary of State for the Home Department (Rev 1)

A person who receives a positive reasonable-grounds decision under the National Referral Mechanism must be formally protected from removal while the identification process continues. A policy which leaves that person as an overstayer or illegal migrant fails to implement Article 10.2 of the Council of Europe Convention on Action against Trafficking in Human Beings.

The Secretary of State must provide interim discretionary leave on lawful terms which take account of the person’s existing leave and the likely delay. Where existing leave permits work, the policy must not arbitrarily remove that right because of administrative delay. The court rejected the Article 14 discrimination challenge.

The claimant, a non-British and non-EEA national, was referred to the National Referral Mechanism after escaping sexual exploitation and forced prostitution. She received a positive reasonable-grounds decision, but the conclusive-grounds decision was substantially delayed. Her existing work-authorising visa expired before the conclusive-grounds and discretionary-leave decisions were made, leaving her unable to work.

She challenged the Secretary of State’s policy of granting no discretionary leave after a positive reasonable-grounds decision and of not treating the referral as extending her existing leave under section 3C of the Immigration Act 1971. She also alleged discrimination under Article 14 of the European Convention on Human Rights.

1. The claim succeeded in substance. The court declared that the existing policy contained an unlawful lacuna because it did not formally protect a person with a positive reasonable-grounds decision from removal while the identification process continued. Article 10.2 of the Council of Europe Convention on Action against Trafficking in Human Beings required more than merely refraining from removal in practice. Leaving such a person as an overstayer or illegal migrant did not fulfil the obligation.

2. The Secretary of State was required to formulate a policy granting interim discretionary leave to such persons. The precise terms and conditions were for the Secretary of State, not the court, but they had to be lawful and had to reflect both the person’s existing immigration position and the likely delay in obtaining a conclusive-grounds decision.

3. Where a person already held time-limited leave permitting work, the policy could not impose the arbitrary adverse consequence of removing that right merely because of delays in the National Referral Mechanism. The court did not decide that a positive reasonable-grounds decision automatically extended existing leave under section 3C of the Immigration Act 1971.

4. The argument based on Article 13.1 was rejected. In context, the reference to “this period” meant the recovery and reflection period, rather than the wider period required for the authorities to complete the identification process.

5. The discrimination claim failed. A non-British, non-EEA potential victim was not a qualifying status for Article 14 purposes. Alternatively, any difference in treatment was objectively justified by the claimant’s immigration status. A declaration was to be agreed between counsel, with disputed wording reserved for the court.