VLT (Vietnam), R (on the application of) v Secretary of State for the Home Department

Where discretionary-leave guidance expressly preserves transitional treatment for confirmed trafficking victims with outstanding trafficking-related asylum claims, it must be construed consistently with its stated commitment to give effect to Article 14(1)(a) of the Council of Europe Convention on Action against Trafficking in Human Beings 2005 and EOG and KTT v Secretary of State for the Home Department [2022] EWCA Civ 307.

A blanket exclusion of all persons subject to deportation proceedings is unlawful where it prevents consideration under those transitional provisions. Article 14(1)(a) contains no public-order exception, and the exclusion exceeds the statutory public-order disqualification by catching persons who are neither a threat to public order nor foreign criminals within section 32(1) of the UK Borders Act 2007.

The applicant, a Vietnamese national and confirmed victim of trafficking, had an outstanding asylum claim based materially on a fear of re-trafficking. He was subject to a deportation order arising from an eight-month sentence for an offence committed in circumstances of forced criminality.

On 12 June 2023 the Secretary of State refused him temporary permission to stay under the victims-of-trafficking policy. The applicant contended that he instead fell within transitional provisions in the Discretionary Leave policy, version 10, for persons who had both a positive conclusive grounds decision and a trafficking-related outstanding asylum claim before 30 January 2023.

The central issues were whether those provisions implemented Article 14(1)(a) of the Council of Europe Convention on Action against Trafficking in Human Beings 2005, and whether their exclusion of persons subject to deportation proceedings was lawful.

1. The judicial review claim succeeded. The decision of 12 June 2023 was unlawful because the applicant was wrongly excluded from consideration for discretionary leave under the transitional provisions of the Discretionary Leave policy.

2. Applying EOG and KTT v Secretary of State for the Home Department [2022] EWCA Civ 307, the Tribunal first considered whether the policy intended to give effect to ECAT and, secondly, whether it did so. Properly construed, the transitional provisions were not merely benevolent arrangements for applications delayed beyond 30 January 2023. Their express references to ECAT and KTT showed an intention to apply Article 14(1)(a) to the defined pre-30 January 2023 cohort.

3. The deportation carve-out was incompatible with that commitment. Article 14(1)(a) requires consideration of whether a victim’s stay is necessary owing to their personal situation. Unlike Article 13(3), it contains no public-order exception. A blanket rule excluding anyone subject to deportation proceedings prevented that required consideration.

4. The carve-out also went beyond sections 63 and 65 of the Nationality and Borders Act 2022. It did not ask whether the person was a threat to public order or a foreign criminal under section 32(1) of the UK Borders Act 2007. The applicant’s eight-month sentence did not meet that threshold. There was therefore no lawful basis to deny him the benefit of the transitional provisions.

5. The Tribunal rejected the separate contention that Article 4 of the ECHR incorporated Article 14(1)(a) ECAT into domestic law. The Article 4 obligations had to be analysed independently. No declaration under section 6 of the Human Rights Act 1998 was necessary.

6. The refusal under the temporary-permission policy was independently flawed because it applied the wrong policy. Its reliance on Part 9 of the Immigration Rules was misconceived: that material concerned cancellation, whereas a grant of temporary permission was governed by the applicable trafficking rules.

7. Permission to appeal was refused. The Secretary of State had no arguable basis for maintaining the deportation carve-out where it imposed a broader exclusion than the current public-order regime.

Upper Tribunal (Immigration and Asylum Chamber): Original judicial-review proceedings challenging the Secretary of State’s refusal of temporary permission to stay dated 12 June 2023. The Tribunal allowed the claim and refused the respondent permission to appeal.