Secretary of State for the Home Department v S

Under the statutory and policy scheme introduced on 30 January 2023, transitional provisions for confirmed victims of trafficking must be read against Parliament’s new scheme. The interpretative approach in KTT does not extend to the new framework. The provisions confer a concession on most members of the pre-existing KTT cohort, reflecting historic delay, but exclude persons subject to an extant deportation order or current deportation proceedings. Those persons remain entitled to individual consideration under the new temporary-permission regime. The exclusion is lawful and does not constitute unjustified discrimination under article 14 of the ECHR. A mistaken reference to Part 9 of the Immigration Rules (HC 395 as amended) is immaterial where the application was independently considered and refused under the correct criteria.

These were appeals by the Secretary of State from decisions of the Upper Tribunal (Immigration and Asylum Chamber) in judicial reviews brought by VLT and S. Both had positive conclusive grounds decisions as victims of trafficking and had made relevant asylum claims before 30 January 2023. Both were subject to deportation measures.

The Upper Tribunal held that the transitional provisions in the discretionary-leave policy implemented article 14(1)(a) of the European Convention against Trafficking in Human Beings as interpreted in KTT, and that the exclusion of deportation cases was unlawful. The central issues were the proper construction and lawfulness of the transitional provisions, S’s article 14 ECHR argument, and the materiality of the Secretary of State’s reference to Part 9 of the Immigration Rules in VLT’s case.

Lady Justice Elisabeth Laing gave the leading judgment, with Lady Justice Andrews and Lord Justice Peter Jackson agreeing.

1. The approach in KTT arose against an earlier statutory and policy background. The Nationality and Borders Act 2022, the amended Rules and the new policies represented a deliberate policy shift. Section 65 created an express statutory scheme requiring leave only for specified purposes, subject to specified exceptions. The question was therefore what the DLP meant against the current legal background, not whether it evinced an intention to implement article 14(1)(a) of ECAT.
2. The transitional provisions recognised the historic injustice caused by the unlawful delay identified in XY. They created an XY concession under which most members of the KTT cohort would be considered under the former policy as interpreted in KTT. The provisions had to be read as a whole. Their immediately succeeding deportation provisions excluded from that concession persons subject to an extant deportation order or to current deportation proceedings.
3. The exclusion did not prevent those persons from applying for leave or require their applications to be refused automatically. It required their cases to be considered individually under the new Rules and temporary-permission scheme. The Secretary of State had considered both applications on their merits under that scheme.
4. The deportation carve-out was lawful. Its operation depended on the existence of a deportation order or deportation proceedings, not on whether the public-order exception in the new scheme applied. Parliament had given substantial weight to the deportation of foreign criminals while providing express protections, including protections relating to ECAT. The distinction was not irrational or otherwise unlawful.
5. For article 14 of the ECHR, the court applied the four-stage inquiry identified in SC, flexibly rather than through rigid compartments. It assumed that deportation status was an “other status”, but held that persons subject to deportation measures were not in a relevantly analogous position to other members of the KTT cohort. In any event, the difference in treatment was objectively justified by the statutory deportation scheme and its legitimate public-protection aims.
6. VLT was accepted, for the purposes of the appeal, not to be a foreign criminal. That did not affect the lawfulness of the carve-out. The Secretary of State’s mistaken reference to Part 9 of the Rules was not material because the application had already been considered and refused under the independent VTS criteria. The Secretary of State’s appeals were allowed and S’s Respondent’s Notice was dismissed.

1. Court of Appeal (Civil Division): appeals by the Secretary of State allowed. S’s Respondent’s Notice dismissed. The Upper Tribunal’s decisions were held not to contain material errors of law.
2. Upper Tribunal (Immigration and Asylum Chamber): in VLT’s judicial review, Decision 1 was quashed and the Secretary of State was required to reconsider the application under the DLP. In S’s judicial review, the Secretary of State was required to remake the decision on discretionary leave. The proceedings arose under JR-2023-LON-001397 and JR-2023-LON-001944.