TK, R (on the application of) v Secretary of State for the Home Department (VTS leave – unpublished policy)

A policy that materially guides the exercise of statutory discretion must be disclosed in time and with enough detail for affected people to make meaningful representations. An unpublished practice that makes 12 months the only option when treatment has no evidenced end-date is unlawful where published policy requires consideration of all available information and permits a broader assessment. Notice through a pre-decision questionnaire can be sufficient if it explains the general approach and allows a response. A 12-month general starting point does not itself fetter discretion where individual information remains open to consideration. The court also held that renewable 12-month permits did not breach Article 14(1)(a) of the Trafficking Convention.

TK, a recognised victim of trafficking, challenged the Secretary of State for the Home Department’s practice of granting 12 months’ temporary permission to stay where treatment had no stated end-date or its expected duration was not evidenced. His challenge to his individual grant became academic after the Secretary of State reconsidered his case and granted a further period of leave. The original grounds were settled by consent, leaving a challenge to the practice on grounds including non-publication, inconsistency with published policy, fettering of discretion, irrationality, incompatibility with the Trafficking Convention and breach of the public sector equality duty.

The central questions were whether the pre-December 2025 practice was unlawful while unpublished, whether its subsequent notice in the Current Circumstances Questionnaire amounted to lawful publication, and whether the remaining grounds justified declaratory relief.

1. Disposition. The claim succeeded in part. The Tribunal declared that operating the unpublished practice before 17 December 2025 was unlawful. It refused declarations concerning the practice as then published, the public sector equality duty, and TK’s original individual decision, which was no longer under challenge.
2. Publication and representations. Applying R (Lumba) v SSHD [2011] UKSC 12, the judge held that a person affected by a policy governing statutory discretion must know the applicable approach in time to make meaningful representations. Before publication, a person who did not know that 12 months would be granted in the absence of an evidenced treatment end-date could not address that approach. The practice was therefore unlawful while unpublished.
3. Rigidity and policy consistency. The evidence showed that, under the unpublished practice, a caseworker could identify an end-date or recommend 12 months; the evidence disclosed no discretion to select another period based on all available information. The practice was rigid, inconsistent with the published policy, which required consideration of all available information, and a fetter on discretion. It was also irrational. The evidence did not establish that the practice had been implemented uniformly in every case, but that uncertainty did not alter the conclusion about its terms.
4. Later publication. The amended questionnaire was sent before a decision and told recipients that 12 months would generally be considered appropriate where treatment duration was unknown. Read with the published policy’s evidential guidance, this gave recipients an opportunity to make meaningful representations. The published approach remained open to individual information and was not shown to be rigid or inconsistent with the policy. The practice’s omission from the published policy did not, by itself, make it unlawful.
5. Other grounds. Article 14(1)(a) of the Trafficking Convention did not prescribe a particular permit duration. The Convention required a renewable permit, and the personal-situation assessment concerned whether to issue a permit rather than its length. The renewable 12-month practice did not breach that provision. The respondent had not demonstrated that due regard was given to the public sector equality duty when the unpublished practice was adopted. The judge nevertheless declined the requested declaration, finding that it had no utility in light of the declaration granted and the later publication.
6. Relief and permission to appeal. A declaration was justified for the historical operation of the unpublished practice because others were likely to have been affected. The remaining requested declarations were refused. The respondent’s application for permission to appeal to the Court of Appeal was refused.

This was a first-instance judicial review in the Upper Tribunal. Permission was granted on the original challenge, and permission to amend the grounds to challenge the practice was later granted. The challenge to TK’s individual decision was settled by consent after reconsideration, leaving the practice challenge for determination. The respondent’s application for permission to appeal to the Court of Appeal was refused.