[2024] UKUT 00067 (IAC)

The DLP intends to comply with Article 14(1)(a) ECAT in respect of DLMS Cases and the decision to exclude the applicant from consideration under the DLP was contrary to Article 14(1)(a) ECAT and unlawful. The transitional provisions in the DLP clearly intend to implement the judgment of KTT and there is no lawful basis for exclusion from those provisions on the grounds the applicant is subject to deportation proceedings.

It is not in dispute the applicant had a positive CGD and a pending asylum claim based on a well founded fear of being re-trafficked before the 30 January 2023. His application for leave to remain was made in November 2022.

On the agreed facts the applicant comes within the cohort of DLMS Cases and would qualify for consideration for DL under the DLP and a grant of DL following KTT. The respondent refused to consider and/or grant leave under the DLP because of the applicant’s deportation order. However, the CGD finds that the applicant was subject to forced criminality which resulted in a single conviction for which he was sentenced to 8 months’ imprisonment. The applicant is not a threat to public order.

The respondent submits that the applicant does not fall within the cohort of DLMS Cases because he is subject to deportation and therefore the VTSP and IR-VTS apply. However, the applicant would not be refused on grounds of suitability under these provisions.

Under section 63 NABA 2022, the applicant is not a foreign national offender and section 32 of the UK Borders Act 2007 does not apply. The applicant would not be excluded from a grant of leave to remain under the VTSP or IR-VTS on suitability grounds notwithstanding his deportation order dated 16 January 2013.

Therefore, there is no lawful basis to exclude the applicant from the benefit of the transitional provisions in the DLP on the basis of his extant deportation order which does not meet the current threshold for public order disqualification. I find the applicant’s personal situation brings him within the transitional provisions of the DLP and the decision to refuse DL and/or refuse to consider DL under the DLP was unlawful.

The applicant also succeeds under ground 3 in so far as the transitional provisions in the DLP evince an intention to comply with the obligations in Article 14(1)(a) ECAT and the deportation carve out in respect of the cohort of DLMS Cases fails to do so. However, notwithstanding the DLP fails to give effect to ECAT and the decision refusing to consider or grant leave under the DLP was unlawful, this did not involve the direct enforcement of an unincorporated treaty because ECAT was not the source of the obligation: [32] KTT.

The applicant seeks a declaration that the DLP is contrary to Article 4 and unlawful under section 6 of the Human Rights Act 1998 (HRA). I am of the view such a declaration is not necessary for the reasons given above.

With both of these points in mind, I go on to consider whether the decision to refuse the applicant a residence permit on account of the deportation order breaches Article 4 ECHR. I can therefore deal with the remainder of ground 3 briefly.

Article 4 of the European Convention of Human Rights (ECHR) materially provides that:

“1.

No one shall be held in slavery or servitude.

2.

No one shall be required to perform forced or compulsory labour.”

It is settled law that the positive obligations under Article 4 ECHR include the duty in certain circumstances to take operational measures to protect victims or potential victims of trafficking : Rantsev v Cyprus and Russia (2010) 51 EHRR 1 and SM v Croatia (2021) 72 EHRR 1. The Article 4 positive obligations must be construed in light of ECAT and protection measures include assisting victims with their physical, psychological and social recovery VCL and AN v UK (2021) 73 EHRR 9.

Ms Mellon submits the operational duty under Article 4 includes the duty to assist recovery. There is a risk of re-trafficking for those who have been trafficked in the past and who remain in the UK without leave seeking asylum which is an inherently insecure position. Article 14(1)(a) as interpreted in KTT, requires that recognised victims of trafficking whose asylum claims are pending must be granted a period of leave. She submits that Article 4 interpreted in the light of ECAT, imposes the same obligation.

Ms Mellon refers to R (TDT (Vietnam)) v SSHD [2018] EWCA Civ 1397 in her skeleton argument and accepts there is no automatic read across, but in her submission that is exactly what she is asking the Tribunal to do. Applying the dicta at [31], the obligations under Article 4 ECHR and the obligations under the transitional provisions in the DLP, which intend to comply with the obligations in Article 14(1)(a), have to be analysed separately. In my view, the application of the DLP was not a mechanism by which the UK satisfied its procedural obligations under Article 4: SSHD v Minh [2016] EWCA Civ 565.

Having reviewed the Strasbourg case law and considered [54] of R (AB) v SSHD [2021] UKSC 28, I am not persuaded that the obligation imposed by Article 14(1)(a), as interpreted by KTT, can be derived from the operational duty recognised in Rantsev, TDT and VCL.

I am persuaded by the respondent’s submission that Article 4 does not have the effect of incorporating Article 14(1)(a) ECAT adopted by KTT into domestic law via the HRA 1998.

The refusal of VTS was unlawful because the respondent applied the wrong policy for the reasons given above.

I am fortified in this view by the letter from the SCA dated 7 March 2023 (page 155 of the trial bundle) that a decision would be made on applicant’s application for limited leave to remain once policies had been reviewed in the light of KTT. If the VTSP first published on 30 January 2023 was applicable there was no need to await further review of the DLP.

I note that the decision of 12 June 2023 makes reference to part 9 of the immigration rules. This is misconceived. The VTSP on page 9 makes clear that this is relevant to the cancellation of permission to stay. A grant of VTS is made under the criteria in IR-VTS. The refusal on the basis that VTS must be refused because “previous behaviour is deemed not conducive to the public good” is clearly wrong and demonstrates the decision maker’s misunderstanding of the relevant applicable rules and policy.

The transitional provisions in the DLP applicable to DLMS Cases were intended to commit the respondent to making decisions on DL in accordance with Article 14(1)(a) ECAT and KTT. The respondent has failed to do so. The decision of 12 June 2023 is therefore in breach of the DLP and unlawful.

The case of XY v SSHD [2024] EWHC 81 Admin was handed down on 23 January 2024. It was concerned with the policy guidance on Discretionary Leave Considerations for Victims of Modern Slavery, version 4 published on 8 December 2020 and raised different issues to those argued in the applicant’s case.

The respondent applied for permission to appeal on the following grounds:

“The Upper Tribunal erred in its interpretation of the transitional provisions within the policy guidance on discretionary leave, version 10, published on 16 March 2023 (the “DLP”). Whether or not the transitional provisions within the DLP, properly construed, apply article 14(1)(a) of ECAT as interpreted in (EOG and KTT v SSHD [2022] EWCA Civ 307 (“KTT”)) in cases to which the transitional provisions apply, the DLP is clear that article 14(1)(a) of ECAT as interpreted in KTT does not to apply in cases covered by the deportation ‘carve out’. In other words, such cases simply fall outside the scope of the relevant transitional provisions, on their correct construction. Properly interpreted as a whole the DLP transitional provisions therefore do not and cannot provide that the KTT interpretation of article 14(1)(a) of ECAT must be applied in the applicant’s case, given that he falls within the deportation ‘carve out’, and therefore falls outside the scope of the relevant transitional provisions. There is no principle of interpretation that could allow the Tribunal to construe the DLP transitional provisions without regard to, or so as to override, that clear limitation of their scope.”

The respondent does not challenge my conclusion that the transitional provisions under the DLP intended to give effect to Article 14(1)(a) ECAT and the judgment in KTT. The respondent submits that Article 14 (1)(a) ECAT as interpreted in KTT does not apply in deportation cases and the applicant falls within the deportation carve out.

This argument has no merit because the deportation carve out is unlawful for the following reasons. The respondent is seeking to exclude the applicant from the benefit of the transitional provisions in the DLP (which implements Article 14(1)(a) and KTT) and decide his application under the less favourable provisions in the VTSP (which does not implement Article 14(1)(a) and KTT) for reasons which are not sustainable under the VTSP or indeed NABA 2022 and the IR-VTS.

I refuse permission to appeal because there is no arguable case that I have erred in law or there is some other reason that requires consideration by the Court of Appeal.