Secretary of State for the Home Department v S

The Court of Appeal considered the proper construction of transitional provisions in the Secretary of States Discretionary Leave Policy (DLP, version 10) which created a concession for a subset of victims of trafficking (the "KTT cohort"). The key legal issues were the interaction of the DLP with the Nationality and Borders Act 2022 (in particular sections 63 and 65), the Immigration Rules Appendix VTS and the VTSP, and whether the DLPs transitional concession required decision-makers to apply article 14(1)(a) of the Council of Europe Convention against Trafficking in Human Beings (ECAT) as interpreted in R (KTT) v Secretary of State for the Home Department.

The court held that the transitional provisions lawfully provided a remedial concession (the "XY concession") applying the pre-30 January 2023 approach to many members of the KTT cohort, but that the concession expressly excluded members of that cohort who were subject to deportation orders or deportation proceedings. That exclusion did not unlawfully discriminate in breach of article 14 ECHR or otherwise offend the legal framework enacted by Parliament. The Upper Tribunal had misinterpreted the transitional provisions by treating them as importing a universal commitment to implement ECAT as construed in KTT; the Court of Appeal allowed the Secretary of State's appeals and dismissed the respondent's cross-appeal on article 14 ECHR grounds.

This is an appeal from two Upper Tribunal judicial review decisions challenging refusals by the Secretary of State to grant leave to remain to two confirmed victims of trafficking ("VLT" and "S"). Both applicants had received positive conclusive grounds National Referral Mechanism decisions and had made asylum claims which, to some extent, relied on a fear of re-trafficking ("relevant claims"). Each challenged (i) refusal of discretionary leave to remain under the pre-30 January 2023 approach and (ii) refusal of temporary permission to stay under the post-30 January 2023 regime.

Procedural posture: The appeals came from the Upper Tribunal (Immigration and Asylum Chamber) (JR-2023-LON-001397 and JR-2023-LON-001944) to the Court of Appeal. The UT quashed the Secretary of States decision in VLTs case and declared part of the DLP unlawful, ordering DL to be granted absent special circumstances. The UT allowed S's claim and ordered reconsideration; S cross-appealed against the UT's rejection of his article 14 ECHR argument.

Nature of the claims/applications:

• Judicial review of decisions refusing discretionary leave (DL) to victims of trafficking and refusals of temporary permission to stay under the post-30 January 2023 framework (VTS/VTSP and Appendix VTS to the Immigration Rules).
• Challenge to the lawfulness and construction of the DLP transitional provisions and their conformity (or otherwise) with ECAT article 14 as interpreted in KTT and with ECHR article 14 and article 4 (positive obligations).

Issues framed by the Court:

• Whether the UT correctly interpreted the transitional provisions of the DLP as committing the Secretary of State to apply the pre-30 January 2023 approach (as interpreted in KTT) to all members of the KTT cohort.
• Whether the DLP transitional provisions lawfully excluded from the concession those members of the KTT cohort who were subject to deportation orders or deportation proceedings (the "deportation carve-out").
• Whether the application of the DLP to S's case engaged and breached article 14 ECHR in combination with article 4 or article 8.

Court's reasoning (concise):

• The statutory and policy background changed materially on 30 January 2023 when provisions of the Nationality and Borders Act 2022 (notably section 65, read with section 63) and the updated Rules (Appendix VTS) and VTSP took effect. That change limited the scope of domestic implementation of ECAT and altered the analytical starting point for construing the DLP. The interpretative approach in KTT has less application in the new statutory context.
• The DLP transitional provisions perform two lawful purposes: (a) to remedy the injustice caused by earlier delay in deciding cases (the "XY concession") by permitting many in the KTT cohort to be decided on the pre-30 January 2023 approach, and (b) to make clear that certain members of the KTT cohort who are subject to deportation orders or deportation proceedings are excluded from that concession and will be decided under the new post-30 January 2023 framework (VTS/VTSP and the statutory provisions implementing the modern slavery regime).
• The deportation carve-out simply denies the remedial concession to a subgroup (those with deportation orders or proceedings) but does not prevent those persons from having an individual decision on leave under the new scheme; that distinction is lawful and rational in light of Parliament's detailed scheme balancing deportation of foreign criminals and protections for victims of trafficking, and does not constitute unlawful discrimination under article 14 ECHR when read with articles 4 or 8.

Disposition: The Court of Appeal allowed the Secretary of State's appeals, held that the UT misinterpreted the relevant transitional provisions, and dismissed S's cross-appeal based on article 14 ECHR.

This is an appellate judgment allowing the Secretary of State's appeals. The Court of Appeal held that the UT misinterpreted the DLP transitional provisions. The DLP lawfully created a remedial concession (the XY concession) for many members of the KTT cohort but expressly excluded those who were subject to deportation orders or deportation proceedings; that exclusion was lawful and did not breach article 14 ECHR (read with article 4 or 8). The Secretary of States decisions refusing leave were lawful on the correct construction and application of the policy.

Appeals from the Upper Tribunal (Immigration and Asylum Chamber) (JR-2023-LON-001397 and JR-2023-LON-001944) to the Court of Appeal; the UT had quashed the decision in VLTs case and declared part of the DLP unlawful and had allowed Ss judicial review and ordered reconsideration; the Court of Appeal allowed the Secretary of States appeals and dismissed Ss cross-appeal.