[2024] UKUT 00067 (IAC)

The DLP provides that it must be read in conjunction with other key guidance, in particular and including the VTSP. It states (at page 6 of 30):

“Individuals with a positive conclusive grounds decision whose outstanding asylum claim or further submissions (which is based in a material part on a claim to a well-founded fear of re-trafficking/real risk of serious harm due to re-trafficking) has not been finally determined before 30 January 2023 should be considered for DL. DL will normally be granted in these circumstances on the grounds that their ‘stay in the UK is necessary’ to pursue their asylum claim or further submissions. Cases on or after 30 January 2023 – this includes individuals who received a positive conclusive grounds decision before 30 January 2023 but did not claim asylum or lodge further submissions until after 30 January 2023 (or vice versa) – will be considered under the Temporary Permission to Stay considerations for Victims of Human Trafficking or Slavery policy.”

The section on modern slavery and human trafficking cases states that from 30 January 2023 those with a CGD may be eligible for VTS based on the criteria in section 65 NABA 2022. The DLP then goes on the consider pre-30 January 2023 cases and states:

“Individuals who before 30 January 2023, had both a positive conclusive grounds decision and had made an asylum claim or further submissions, based in a material part on a claim to a well-founded fear of re-trafficking/real risk of serious harm due to re-trafficking, which had not been finally determined, were potentially entitled to DL had their applications for leave been determined under the Home Office policies prior to 30 January 2023.”

…

“Individuals who meet the requirements above may be entitled to DL because the Home Office policies in force at the time implemented Article 14 (1)(a) of the Council of Europe Convention on Action against Trafficking in Human Beings 2005 (ECAT).

The Court of Appeal in the case of EOG & KTT v Secretary of State for the Home Department [2022] EWCA Civ 307 (17 March 2022), referred to as ‘KTT’, determined that the Home Office approach to applications for Modern Slavery Discretionary Leave was not in accordance with Article 14 (1)(a) of ECAT (which the policy was found to commit to implementing). Article 14 (1)(a) of ECAT leads states to consider whether the victim's “stay is necessary owing to their personal situation". The Court found that a confirmed victim of trafficking, who has an outstanding asylum claim which is trafficking-related, requires a consideration of leave to remain in the UK because their ‘stay in the UK is necessary’, owing to their personal situation as a victim of trafficking, in order to pursue that asylum claim.”

In considering when to grant DL, the DLP states:

“Under this policy, those individuals who were eligible for consideration of leave to remain under the KTT judgement prior to 30 January 2023, will not have their applications for DL determined under Temporary Permission to Stay considerations for Victims of Human Trafficking or Slavery. Instead, where:

•

a competent authority made a positive conclusive grounds decision prior to 30 January 2023; and

•

the individual had prior to 30 January 2023 articulated an asylum claim or further submissions which were trafficking-related as set out above; and

•

the individual’s asylum claim or further submissions have at the present date not yet been finally determined (this means that they are still awaiting a decision or still have in-country appeal rights to exercise)

you must consider granting DL. DL will normally be granted in these circumstances.

This leave will either be curtailed or varied once the asylum or further submissions decision has been finally determined. Any future application for an extension of leave will be determined under Temporary Permission to Stay considerations for Victims of Human Trafficking or Slavery.”

The DLP states that DL does not need to be considered where the individual falls to be refused under part 9 of the immigration rules (general grounds of refusal) or is subject to deportation proceedings. In respect of deportation cases the DLP states (at page 14 of 30):

“Where the individual is currently subject to deportation proceedings, either by way of an extant deportation order or where a deportation decision has been made and deportation continues to be pursued, they must not be considered under the DL policy for modern slavery (including human trafficking) cases pre-30 January 2023. Instead they will be considered under Temporary Permission to Stay considerations for Victims of Human Trafficking or Slavery upon application.” (‘the deportation carve out’)