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Give trafficked asylum seekers permission to stay, says High Court
Credit: Anuj Biyani on Flickr

Give trafficked asylum seekers permission to stay, says High Court

The decision in R (KTT) v Secretary of State for the Home Department [2021] EWHC 2722 (Admin), widely reported in the mainstream press this week, is a massive result for trafficking victims. The High Court has concluded that a trafficking victim who is also an asylum seeker must be granted permission to stay (“leave to remain”) in the UK. It is one of those rare judgments where victory on some esoteric legal issues will have huge real-world effects.

International law protection for trafficked asylum seekers

The case centred around the meaning of Article 14(1)(a) of the Convention on Action against Trafficking in Human Beings, usually known as ECAT. It states:

Each party shall issue a renewable residence permit to victims, in one or other of the two following situations or in both:

(a) the competent authority considers that their stay is necessary owing to their personal situation…

It has been long-standing Home Office policy to delay considering victims for a grant of permission to stay until after any claim for asylum has been resolved, and then to grant permission only in very restrictive circumstances. People awaiting an asylum decision, even if they are confirmed victims of trafficking, are rarely allowed to work.

In this case, the claimant KTT argued that, when a trafficking victim has claimed asylum, it is necessary for them to stay in the UK while that claim is considered. As a result, there is an obligation, as a matter of international law under Article 14(1)(a), to grant permission to trafficking victims who have also claimed asylum.

Mr Justice Linden concluded that this submission reflected the language of the provision:

On balance, I prefer Mr Buttler’s interpretation of Article 14 ECAT, which is based on an ordinary reading of the text of the provision and, in my view, consistent with its purpose. The reality of Mr Tam’s argument on interpretation is that Article 14(1) should be read as if it says that the issuing of the residence permit must be necessary, whereas the language of the provision clearly requires consideration of whether the stay is necessary in which case the permit must be issued. Indeed, the requirement to consider whether “their stay is necessary” leaves room for it to be the case that the victim is staying in any event. The provision then asks whether the stay is necessary for a particular reason or purpose, in which case a residence permit, with attendant benefits and advantages, is required to be issued.

That established the obligation in international law. But ECAT is an unincorporated treaty, so a breach of its provisions does not lead to a straightforward breach of domestic law (unlike a breach of the European Convention on Human Rights, incorporated by the Human Rights Act 1998).

The anti-trafficking convention in UK law

The domestic legal status of ECAT is an issue which has been bubbling away for some time.

In an early case, R (Atamewan) v Secretary of State for the Home Department [2013] EWHC 2727 (Admin), Sir James Eadie QC made two important concessions on behalf of the Home Office. First, that the guidance on granting trafficking victims permission to stay purports to give effect to ECAT in domestic law. Second, as a result, if the policy does not correctly give effect to ECAT then that is a breach of domestic law. This concession has meant that over the years the courts have treated allegations that Home Office policy does not comply with ECAT as justiciable, even though there is no general domestic law obligation to comply with ECAT. Most notably, a Court of Appeal bench which included Lord Justices Singh and Hickinbottom accepted the concession in R (PK (Ghana)) v Secretary of State for the Home Department [2018] EWCA Civ 98.

In this case, though, the Home Office attempted to roll back the years by withdrawing both concessions and arguing that a breach of ECAT was not justiciable and that the policy guidance does not seek to give effect to ECAT. Linden J carefully reviewed the issues, before concluding that he supported the position accepted by the court in PK (Ghana):

The critical point in the PK (Ghana) line of cases is that the source of the public law obligation contended for was the declared policy of the Defendant rather than ECAT itself. In each case it was decided or conceded that, as a matter of fact – this was in fact the Defendant’s policy – and construction – this is what her policy documents said – the Defendant had committed to making the relevant decision in accordance with the requirements of the relevant article(s) of the ECAT. It was therefore permissible for the court, applying conventional public law principles, to consider what the requirements of those articles were with a view to deciding whether the policy correctly stated their effect and whether a given decision, taken in accordance with that policy, was lawful. This did not involve direct enforcement of an unincorporated treaty as the treaty was not the source of the obligation contended for. Nor did it involve the filling of lacunae, as Mr Tam submitted, given that the claimants in those cases relied on what was said in the policy documents.

The judge also gave short shrift to the suggestion that the policy guidance had nothing to do with ECAT, pointing out that it refers to the UK’s ECAT obligations on several occasions and includes links to the text of ECAT and the judgment in PK (Ghana):

The reasonable reader would, in my view, conclude from this, and from the inclusion of a link to ECAT, that the Defendant’s policy was to comply with the law relating to people trafficking (whether international or domestic) and that these materials were provided as a reference point in the event that a case worker wished to look at the relevant sources in more detail. The impression that the Policy is intended to ensure that decisions are taken in accordance with the law relating to people trafficking, and to assist decision-makers in doing so, is also reinforced by the references to the United Kingdom meeting its objective under the Trafficking Convention and to relevant legislation and international obligations which I have highlighted at paragraphs [70] and [73]-[74], above.

That finding allowed the judge to conclude that the failure to comply with the requirements of Article 14(1)(a) was a breach of domestic law.

The outcome will have massive practical benefits for thousands of trafficking victims. They should now be entitled to proper immigration permission while waiting for their asylum claim to be processed. It is an amazing result and hopefully the Court of Appeal will see no reason to interfere if the Home Office decides to appeal.

Alex is a pupil barrister at Garden Court Chambers and teaches Public Law at the London School of Economics.