The Lawfulness Of Home Office Guidance On Victims Of Modern Slavery

• Published date: 05 May 2022
• Subject Matter: Litigation, Mediation & Arbitration, Immigration, Trials & Appeals & Compensation, General Immigration
• Law Firm: Richmond Chambers Immigration Barristers
• Author: Mr Alex Papasotiriou

In R (on the application of SV) v Secretary of State for the Home Department (ECAT: lawfulness of policy guidance) [2022] UKUT 39 (IAC), the Upper Tribunal considered the lawfulness of the Secretary of State for the Home Department's policy guidance titled Discretionary Leave Considerations for Victims of Modern Slavery (version 4.0). There is now a further iteration of this guidance, (version 5.0).

The Decision Challenged in R (on the application of SV)

These judicial review proceedings were brought against a decision by the Secretary of State to grant, initially 12, and subsequently 30 months' discretionary leave to remain to a person recognised as a victim of trafficking and diagnosed with complex post-traumatic stress disorder, in order to allow her to access treatment in the UK. The earlier decision had been responded to on the applicant's behalf by way of a cover letter and medical report, stating that the 12 months were insufficient and that "unlimited leave to remain would make the best clinical sense".

Proceedings before the Upper Tribunal in R (on the application of SV)

The grounds of challenge were broadly framed on the basis that the decisions had been made in accordance with the Secretary of State's aforementioned policy, which was unlawful on account of failing to properly reflect, or give effect to, the European Convention against Trafficking in Human Beings 2005 ("ECAT"). ECAT is an international treaty which binds the UK as a matter of international law, having been entered into by the member States of the Council of Europe including the UK, but which has not been incorporated by legislation into domestic law.

The first issue the Upper Tribunal had to address was that of the justiciability of the challenge to the lawfulness of the policy with reference to ECAT. The Secretary of State's position was that any previous concessions as to the fact that the guidance was intended to, and purported to, give effect to ECAT could not be relied upon, in view of the Supreme Court's judgment in R (SC & Ors) v Secretary of State for Work and Pensions & Ors [2021] UKSC 26. In that judgment, it was held that it was not appropriate to seek to apply an unincorporated treaty in reaching a decision as to whether the United Kingdom had complied with its obligations under the ECHR, as unincorporated treaties do not form part of the law of the UK.

Nonetheless, the Upper Tribunal held that the matter was justiciable and that a court or tribunal could not refuse...