KM (Nigeria), R (on the application of) v Secretary of State for the Home Department

Article 14(1)(a) of ECAT does not require a residence permit for a recognised victim of trafficking merely because the person must remain in the United Kingdom to defend criminal charges arising from forced criminality or invoke the Article 26 non-punishment provision. The necessary personal situation must concern the victim’s trafficking-related protection, assistance or recovery needs.

For Article 14(1)(b), it is sufficient that the positive conclusive-grounds decision has been referred to the police and the police confirm that the person is not needed for an investigation or prosecution. The Secretary of State need not assume responsibility for police investigations. Article 8 requires a sufficiently grave, causal interference produced by the impugned decision itself.

The applicant, a Nigerian national recognised as a victim of modern slavery following domestic servitude in 2013 and county-lines forced criminality in 2020, sought judicial review of the Secretary of State’s refusal of modern slavery discretionary leave dated 12 December 2022.

He contended that leave was necessary to defend drug charges arising from his forced criminality, to assist an investigation into the earlier domestic servitude, and to address his mental health needs. The Crown Prosecution Service later offered no evidence because it could not disprove the statutory modern slavery defence. The claim was stayed pending R (oao XY) v Secretary of State for the Home Department [2024] EWHC 81 (Admin).

The central issues were the meaning of necessity under Article 14(1)(a) and (b) of ECAT, and whether the refusal engaged Article 8 of the ECHR.

1. The judicial review application was dismissed. The Secretary of State’s refusal of modern slavery leave was consistent with Article 14(1) of ECAT and did not unlawfully interfere with the applicant’s Article 8 rights.

2. Article 14(1)(a) requires an assessment of whether a victim’s stay is necessary because of that person’s trafficking-related personal situation, viewed purposively through ECAT’s objectives of protection and assistance. It does not extend to a need to remain in the host state as a criminal defendant, whether to contest liability for offences arising from forced criminality or to rely on Article 26. Article 26 requires only the possibility of not imposing penalties; it does not itself require a complete criminal defence or a residence permit to advance one.

3. Article 14(1)(b) separately addresses cooperation with competent authorities in investigations or criminal proceedings. Where the Competent Authority has supplied the positive conclusive-grounds decision to the police, and the police confirm that the victim’s presence is unnecessary, the Secretary of State need take no further step. She is not responsible for allocating or conducting criminal investigations. Any concern about an investigation should ordinarily be raised with the relevant police force.

4. The Secretary of State had adequately considered the medical evidence. The relevant inquiry was whether the applicant’s stay was necessary for trafficking-related recovery, not whether leave would secure complete recovery. It was open to conclude that treatment was available in Nigeria and that the evidence did not establish such necessity.

5. Article 8 was not engaged. Applying Razgar [2004] UKHL 27, there was no sufficiently severe causal interference attributable to this refusal. The applicant’s continuing immigration difficulties arose from his pre-existing overstayer status and delay on a separate human-rights claim, not from the refusal of a benefit to which he was not entitled. Alternatively, any interference was in accordance with the law.

• Upper Tribunal (Immigration and Asylum Chamber): Permission to bring judicial review was granted on the papers on 5 July 2023. The proceedings were stayed pending R (oao XY) v Secretary of State for the Home Department [2024] EWHC 81 (Admin). The Upper Tribunal dismissed the substantive application.