SV, R (on the application of) v The Secretary of State for the Home Department

The absence of domestic incorporation of an international treaty does not prevent judicial scrutiny of a domestic policy adopted to give the treaty normative effect. The treaty and the policy must, however, be kept conceptually distinct. The treaty remains an international obligation, while the policy gives caseworkers instructions for making decisions intended to comply with it.

The lawfulness of such guidance is assessed under the Gillick test approved in [2021] UKSC 37 and [2021] UKSC 38: whether the policy can be operated lawfully, or instead imposes requirements that will lead to a material and identifiable number of unlawful decisions. The policy need not prescribe every detail of discretionary decision-making.

The applicant, an Albanian national and recognised victim of modern slavery, challenged the Secretary of State’s policy on discretionary leave for victims of modern slavery. She argued that the policy failed to give effect to ECAT, particularly by referring to standard periods of leave, a high degree of distinction for longer leave, a high threshold for indefinite leave, and separate compassionate factors for parents.

The policy had been applied when granting the applicant 30 months’ discretionary leave to enable treatment for complex post-traumatic stress disorder. The Tribunal also considered whether the absence of domestic incorporation of ECAT affected the justiciability and legal test applicable to the challenge.

1. Justiciability and legal relationship. ECAT was not incorporated into domestic law, but that did not prevent examination of the lawfulness of policy guidance adopted to give effect to it. ECAT remained an international set of obligations and was not itself a policy capable of being amended or abrogated by the Secretary of State. The policy was the domestic mechanism instructing caseworkers how to make decisions intended to comply with ECAT.
2. Applicable test. The policy was to be assessed under the Gillick principle, as approved in [2021] UKSC 37 and [2021] UKSC 38. The question was whether the policy could be operated lawfully, or imposed requirements making it apparent that a material and identifiable number of cases would be dealt with unlawfully. The test was not statistical and did not require the policy to explain every detail of the exercise of discretion.
3. Construction of ECAT. ECAT was to be interpreted purposively, by reference to broad and general principles of construction and the ordinary meaning of its terms in context and in light of its object and purpose. Article 14 did not prescribe the duration of a residence permit beyond requiring it to be renewable. The respondent therefore retained significant discretion over duration.
4. Application. The references to normally granting up to 30 months, a high threshold for indefinite leave, and distinguishing circumstances to a high degree did not require a decision contrary to the Article 14 necessity test. The policy permitted further leave where the eligibility criteria continued to be met. The provisions concerning children and parents were also lawful because they required separate consideration of the child’s best interests and the parent’s own circumstances.
5. The challenge to the decision letter failed. The evidence did not establish that indefinite leave, rather than 30 months’ leave, was necessary for treatment. The application for judicial review was dismissed. An anonymity direction was continued.

The judgment records related proceedings concerning the policy, including R (KTT) v Secretary of State for the Home Department [2021] EWHC 2722 (Admin). The Upper Tribunal followed the relevant findings of the High Court and dismissed this application for judicial review.