It has recently come to light that the Home Office has been intentionally delaying deciding on claims by asylum seekers who are victims of human trafficking and designated for potential removal to Rwanda. This policy, which was not public, lasted for over a year and ended around April 2024. It was not discovered until the judicial review case of R (MS) v SSHD AC-2024-LON-000866.
THE CASE OF MS
MS, a Sudanese national, was trafficked to Libya and endured forced labour and severe mistreatment for months. In 2022, he claimed asylum in the UK upon arrival. However, the Home Office decided his asylum claim was ‘inadmissible.’ This usually happens if an asylum-seeker has travelled through a safe third country on their way to the UK. When the Home Office decides that an asylum claim is inadmissible, the process cannot go any further. They will not make a decision (positive or negative) on the asylum claim.
MS was later recognised as a victim of human trafficking. As such, he was eligible for temporary permission to stay in the UK under two routes:
- KTT leave – named after the case of, EOG and KTT v Secretary of State for the Home Department [2022] EWCA Civ 307. The case confirmed that people who have been recognised as victims of trafficking under the National Referral Mechanism and have pending asylum claims, based on their fear of potentially being trafficked again, should be granted leave to remain so they can stay in the UK until they receive a decision on their asylum claim. MS, who had been trafficked from his home country to Libya, was fearful of it happening again and was arguably eligible.
- VTS leave – from s.65 of the Nationality and Borders Act 2022, which states that recognised victims should be granted leave to remain if they need help for psychological harm inflicted by the exploitation and this cannot be accessed in their home country or another country in partnership with the UK (e.g. Rwanda). MS, who had evidence showing he needed psychological treatment because of his traumatic trafficking experiences, was arguably eligible for this route too.
Either route allows the individual to work and access benefits and, if given VTS leave, MS would not have had to worry about inadmissibility.
However, despite being recognised as a victim of human trafficking, the Home Office refused to substantially reconsider whether he could bring an asylum claim. In March 2024, MS filed for judicial review on the grounds that the Home Office had an unpublished policy of delaying claims for asylum seeking victims of trafficking due to ‘inadmissibility.’ MS alleged that this breached his human rights, namely Article 4 (prohibition of slavery and forced labour) and Article 8 (right to family and private life) of the ECHR.
As a result, the Home Office confirmed that they operated this unpublished policy:
- Between March 2023 and March 2024, they paused decision-making for KTT leave.
- On 29 June 2023, they paused decision-making for VTS leave, after the Court of Appeal ruled that asylum seekers who were removed to Rwanda might face a real risk of ill-treatment by refoulment (being returned to their country of origin). The Home Office challenged the ruling up to the Supreme Court. Meanwhile, claimants waited for decisions until on/around April 2024, when the Safety of Rwanda Bill was in the process of becoming law.
The Home Office finally reconsidered MS’s asylum claim in April 2024, only to eventually refuse MS leave under both the KTT and VTS routes (despite caseworker emails indicating they thought he should be granted leave under the VTS route).
MS filed a judicial review again and won. The Home Office granted him refugee status in July 2024.
IMPACT
This is by no means the first time that judges have held the Home Office accountable for systemic delays. In XY v Secretary of State for the Home Department [2024] EWHC 81 (Admin), the High Court ruled that the Home Office’s other unpublished policy (of delaying decisions on KTT claims) was unlawful.
Even though MS was eventually granted refugee status, the Home Office’s delays impacted not only his immigration status, but also his mental health. Confronted with the possibility of removal to Rwanda, he, like many asylum seekers and victims of human trafficking, found themselves struggling even to get temporary permission to stay. MS has claimed compensation, using the Home Office’s own admission that they purposefully paused the decision-process. This is certainly an avenue that can be pursued by those in similar situations.
FUTURE DELAYS
On 11 July 2024, the Home Secretary publicly announced that VTS claims will be paused to enable her to consider what claimants are owed under the law.
Our immigration lawyers and advisors have extensive experience in asylum and human rights matters, including cases of trafficking. To discuss your situation, please contact 0208 995 3556 or info@descartessolicitors.co.uk.
By Tiffany Carpenter
07/08/2024