EOG v Secretary of State for the Home Department

An unincorporated treaty creates no directly enforceable domestic rights. However, where a public authority declares that its policy will implement a particular treaty obligation, the court may determine whether the policy does so.

Article 10.2 of the Council of Europe Convention on Action against Trafficking in Human Beings requires that a potential trafficking victim be irremovable during the identification period. It does not require a residence permit or leave to remain.

For a confirmed victim, article 14.1(a) asks whether the victim’s stay is necessary owing to their personal situation. If so, a residence permit must be issued. A stay necessary to pursue a trafficking-related asylum claim meets that requirement, notwithstanding that domestic law already prevents removal while the claim is pending.

The Secretary of State appealed against two Administrative Court decisions concerning her policy on modern slavery leave. In EOG, Mostyn J held that the absence of a policy granting interim leave to potential trafficking victims awaiting conclusive identification was inconsistent with article 10.2 of the Council of Europe Convention on Action against Trafficking in Human Beings: [2020] EWHC 3310 (Admin).

In KTT, Linden J held that the policy failed to implement article 14.1(a) because it asked whether granting leave was necessary, rather than whether a confirmed victim’s stay was necessary owing to her personal situation: [2021] EWHC 2722 (Admin). KTT needed to remain in the United Kingdom to pursue an asylum claim based on the risk of re-trafficking.

The central issues were whether the policies were intended to implement the Convention and, if so, whether articles 10.2 and 14.1(a) required leave to be granted in those circumstances.

1. The appeal in EOG was allowed and her claim dismissed. Article 10.2 imposes a negative obligation not to remove a potential trafficking victim while the identification process is continuing. It does not require the state to grant immigration status or leave to remain. The Convention deliberately distinguishes potential victims, who receive irremovability and basic assistance under articles 10.2 and 12.1–12.2, from confirmed victims, who may receive a residence permit and enhanced assistance. The serious harm caused by prolonged administrative delay could not justify enlarging the express treaty obligation: paras [46]–[49], [57].

2. The final sentence of article 13.1 did not require leave to remain. Any authorisation or documentation contemplated during the recovery and reflection period could record irremovability without conferring a positive right of residence. It was unnecessary to decide precisely which period the sentence identified. The Secretary of State might nevertheless wish to consider issuing potential victims with formal documentation confirming their protected presence: paras [50]–[53].

3. The appeal in KTT was dismissed. The published guidance had consistently purported and been intended to implement article 14.1(a). An alleged failure to fulfil that declared policy was therefore justiciable under ordinary public law principles, although the Convention itself remained unincorporated and created no directly enforceable rights: paras [34]–[37], [68]–[76].

4. Article 14.1(a) naturally asks whether the victim’s stay is necessary owing to their personal situation. It does not ask whether a residence permit is necessary to prevent removal. Once the competent authority considers the stay necessary for the relevant Convention purpose, it must issue a residence permit with its attendant benefits. Domestic provisions already preventing an asylum-seeker’s removal did not answer that question: paras [78]–[82].

5. A “stay” need not be long-term. It means the victim’s necessary presence in the state’s territory and may be temporary or contingent. The duration and terms of the residence permit may reflect the underlying need. KTT’s stay was necessary to pursue her trafficking-related asylum claim, so the policy as applied failed to give effect to article 14.1(a): paras [83]–[89].

Underhill LJ gave the judgment. Dingemans LJ and Sir Geoffrey Vos MR agreed: paras [93]–[94].

• Court of Appeal (Civil Division): In [2022] EWCA Civ 307, unanimously allowed the Secretary of State’s appeal in EOG, set aside Mostyn J’s order and dismissed EOG’s claim. It dismissed the Secretary of State’s appeal in KTT.
• Administrative Court (KTT): Linden J held that the modern slavery leave policy failed to implement article 14.1(a) of the Council of Europe Convention on Action against Trafficking in Human Beings: [2021] EWHC 2722 (Admin).
• Administrative Court (EOG): Mostyn J held that the absence of a policy providing interim discretionary leave for potential trafficking victims was inconsistent with article 10.2 of the Convention: [2020] EWHC 3310 (Admin).