R (EOG) v Secretary of State for the Home Department and R (KTT) v Secretary of State for the Home Department

The Court of Appeal considered two challenges to Home Office policy on immigration status for victims or potential victims of trafficking under the Council of Europe Convention on Action against Trafficking in Human Beings (ECAT). The court held that ECAT article 10(2) imposes a negative obligation of irremovability and entitlement to basic assistance during the identification period but does not require State parties to grant residence status (leave to remain) to potential victims pending a conclusive grounds decision. Accordingly the appeal in EOG was allowed. By contrast, the Court held that ECAT article 14(1)(a) requires the competent authority, when it considers that a person is a confirmed victim, to issue a residence permit where the competent authority considers that the person’s stay is necessary owing to their personal situation; that the Secretary of State’s published guidance was intended to give effect to that obligation; and that the guidance must be construed so as to give effect to article 14(1)(a). On that basis the refusal to grant discretionary leave in KTT was unlawful and the appeal in KTT was dismissed.

This judgment concerns two separate appeals about the Secretary of State’s policy on the grant of leave to remain to victims of trafficking and potential victims.

• EOG: a New Zealand national was referred to the National Referral Mechanism, received a positive reasonable grounds decision but had no conclusive grounds decision before her immigration leave expired. She challenged Home Office policy that discretionary leave (modern slavery leave) would be considered only for confirmed victims. The High Court (Mostyn J) held the policy unlawful on the basis that ECAT article 10(2) required a grant of leave to potential victims during the identification period. The Secretary of State appealed.
• KTT: a Vietnamese national was a confirmed victim (positive conclusive grounds decision) and had a pending asylum claim based on risk of re-trafficking. The Secretary of State refused modern slavery leave pending the asylum outcome relying on policy. Linden J held the policy did not properly implement ECAT article 14(1)(a), which requires issuing a residence permit where the competent authority considers the victim's stay necessary owing to their personal situation.

The Court of Appeal analysed ECAT chapter III (articles 10, 12, 13 and 14), the accompanying Explanatory Report and the relevant Home Office guidance (the Statutory Guidance and the MSL Guidance). It addressed justiciability: the court accepted the established approach that, where the Secretary of State has declared policy to implement ECAT, the courts may review whether the guidance correctly reflects the Convention without directly enforcing an unincorporated treaty. Applying this, the court concluded:

1. On EOG: article 10(2) imposes an obligation of non-removal and entitlement to basic assistance during the identification period but does not require granting residence permits or discretionary leave to potential victims; Mostyn J’s declaration to the contrary was set aside and the claim dismissed.
2. On KTT: the Secretary of State’s guidance was intended to implement ECAT article 14(1)(a); article 14(1)(a) must be given its natural meaning – the competent authority must consider whether the victim’s stay is necessary owing to their personal situation (including where the victim needs to remain to pursue a trafficking-related asylum claim) and, if so, issue a residence permit; the refusal to grant leave in KTT’s case was therefore unlawful and the appeal was dismissed.

The court noted the systemic problem of prolonged delays in reaching conclusive grounds decisions and asylum decisions, which create prolonged periods of uncertainty for victims, but declined to read into ECAT obligations that are inconsistent with its language and structure.

This judgment resolves two appeals differently. The appeal in EOG is allowed: the Court held that ECAT article 10(2) imposes a negative obligation of non-removal and entitlement to basic assistance during the identification period but does not oblige State parties to grant residence permits (discretionary leave) to potential victims pending a conclusive grounds decision, so Mostyn J’s declaration that the Secretary of State must have a policy granting interim leave was set aside. The appeal in KTT is dismissed: the Court held that the Secretary of State’s guidance was intended to give effect to ECAT article 14(1)(a), that article 14(1)(a) requires consideration of whether the victim’s stay is necessary owing to their personal situation (which can include the need to pursue a trafficking-related asylum claim), and that the Secretary of State’s refusal to grant leave in KTT’s case was unlawful.

Appeals from the Administrative Court (Queen's Bench Division): EOG heard by Mostyn J – [2020] EWHC 3310 (Admin); KTT heard by Linden J – [2021] EWHC 2722 (Admin). Both matters were before the Court of Appeal together: [2022] EWCA Civ 307.