Victims Who Fear “Re-Trafficking” Can Stay in the UK While Waiting for Their Asylum Claim
Victims of human trafficking should be granted leave to remain in the UK while their asylum claim is pending, the Upper Tribunal has decided in R (on the application of SSA (Ethiopia)) v SSHD 2021, provided that their fear of re-trafficking is merely one of the issues put forward as to why they cannot return to their country of origin. However, new Home Office guidance published on 30th January 2023 suggests that a substantial amount of evidence will be required for people to take advantage of this leave, which will make gaining such leave complex.
The facts of R (on the application of SSA (Ethiopia)) v SSHD 2021
SSA and her family supported the Oromo Liberation Front (OLF) political party in Ethiopia. After her father was killed by the authorities for his support of OLF, SSA feared for her life and fled to Saudi Arabia, where she began working for a family. For several years, she endured exploitation and physical abuse at the hands of her employer. When she returned to Ethiopia to visit her ill brother, the authorities arrested her upon arrival and she was “significantly ill-treated” while they interrogated her. SSA managed to escape and returned to her employers in Saudi Arabia. They later moved to the UK and brought her along on a domestic worker visa. She later told her niece that she was being treated “particularly badly” and friends of her cousin reported this to the police. The police then removed SSA from her employer’s home.
SSA subsequently claimed asylum in the UK, explaining that she feared being killed in Ethiopia due to her support for OLF and her political involvement, and also her fear of being exploited again by her Saudi employer.
Although SSA was recognised as a victim of human trafficking in 2021, the Secretary of State (SSHD) refused to exercise her discretion and grant SSA leave to remain as such. The reason given was that her protection claim should be considered first and that she did not need discretionary leave in the meantime.
The law
Article 14(1)(a) of the Convention on Action Against Trafficking in Human Beings (ECAT) requires an authority to issue a residence permit to a confirmed victim of human trafficking if necessary.
SSA argued that the SSHD had acted contrary to this by refusing to grant discretionary leave. The SSHD, on the other hand, argued that it was not necessary because her claim was not ‘substantially’ based on fear of re-trafficking.
The Upper Tribunal’s decision
The Upper Tribunal did not accept the SSHD’s decision and said that if there was a “fear of re-trafficking,” then it was enough to engage the principles of R (KTT) v Secretary of State for the Home Department [2021] EWHC 2722 (Admin) and letting the victim stay while awaiting a decision on their protection claim was required under Article 14(1)(a).
The SSHD argued that SSA’s claim was not majorly trafficking-related and, further, that it was not a point directly stated by her but rather by her legal representatives. Thankfully, the Upper Tribunal shut this argument down decisively and refused to “draw a bright line between what is said by an applicant for protection and what is said by their legal representatives”, thus rejecting the SSHD’s point.
SSA also argued that the SSHD had acted contrary to the discretionary leave policy, which was itself unlawful because the KTT judgement, regarding leave being granted to asylum seekers who are victims of trafficking whilst their case is pending, had been set out in October 2021 and the December 2021 guidance issued by the SSHD on discretionary leave still did not reflect this, many months later. The SSHD countered and stated that she had taken a practice of “bespoke consideration”, and that she had not issued new guidance because there was ongoing litigation surrounding KTT. This argument was also not accepted by the Upper Tribunal, who found that the policy should have been amended and furthermore, was unlawful for failing to meet the requirements of ECAT.
Ultimately, the Upper Tribunal found that there was no justification to defer consideration of SSA’s ECAT leave. While the Upper Tribunal acknowledged that it can be appropriate to defer a decision on ECAT leave if the “asylum claim is wholly unrelated to the trafficking claim,” they found that if the victim’s asylum claim was trafficking-related, then the “only permissible course was to grant ECAT leave whilst that claim (and any appeal) remains pending.”
The future
Unfortunately, while the KTT judgement offered greater protection to victims of trafficking, the SSHD has since introduced the above-mentioned new policy guidance on 30 January 2023, and a new appendix to the immigration rules (Temporary Permission to Stay for Victims of Human Trafficking or Slavery). These narrow who is eligible for ECAT leave and create greater evidential burdens for potential applicants. As the guidance says, “A person will not qualify for temporary permission to stay… solely because a Competent Authority has confirmed that they are a victim of modern slavery. To justify a grant of permission to stay a person must meet the eligibility and suitability requirements of Appendix: Temporary Permission to Stay for Victims of Human Trafficking or Slavery (VTS)”.
Going forward, the new policy and appendix will apply to cases from 30 January 2023 onwards. However, any reconsideration of a decision made under the previous policy will follow the previous guidance, Discretionary Leave for Victims of Modern Slavery and so references to KTT will likely be permitted.
By Tiffany Carpenter