[2024] UKUT 00067 (IAC)

Having committed to giving effect to Article 14(1)(a) in respect of pre-30 January 2023 cases, the DLP ‘carves out’ an exception for those DLMS Cases who are subject to deportation proceedings (the deportation carve out).

Mr Biggs submits, on a correct interpretation of the DLP, the transitional provisions do not evince a commitment to apply ECAT and KTT on the facts of this case because the respondent’s current approach is explicitly contrary to KTT. The respondent had to follow Parliament’s decision to adopt a particular interpretation of the ECAT provisions and the point is only justiciable if the policies, properly interpreted, require Article 14(1)(a) to be applied. Even if the deportation carve out was unlawful under ECAT, ECAT was not part of domestic law and the DLP did not evince a commitment to apply Article 14(1)(a). The applicant cannot benefit from the transitional provisions because of the deportation carve out.

Ms Mellon submits the transitional provisions demonstrated a commitment by the respondent to comply with Article 14(1)(a) in respect of those who had a positive CGD and an outstanding asylum claim before 30 January 2023. Accordingly, following KTT, the respondent was not entitled to exclude the applicant because he was subject to deportation proceedings. She submits the policy in force before the DLP did not exclude those subject to deportation proceedings and section 65 NABA 2022 did not fetter the respondent’s ability to grant leave in trafficking cases on a broader basis than section 65 requires.

Ms Mellon submits the policy prior to 30 January 2023 demonstrated a commitment to comply with Article 14(1)(a) ECAT and it was clear that the intention of the DLP, when viewed objectively, was to honour Article 14(1)(a). It was for the Tribunal to review whether the respondent correctly implemented Article 14(1)(a) and to conclude that the deportation carve out was unlawful because it had no basis in ECAT. It was not the respondent’s case that he had made a policy decision to comply with ECAT save for deportation cases nor does he argue ECAT allows for a public order exemption.

The respondent accepts in the response to the pre-action protocol letter dated 4 August 2023 that under the modern slavery DL guidance which was in place prior to 30 January 2023, Foreign National Offenders (FNOs) should not normally benefit from DL because it is a Home Office Policy to remove foreign criminals from the UK as soon as possible. Leave was to be considered on a case by case basis. The respondent goes on to state that:

“Therefore, the current discretionary leave policy sets out that those who are subject to deportation proceedings should have their entitlement to leave considered under the new Temporary Permission to Stay policy post 30 January in line with current legislation, section 65 of the Nationality and Borders Act and Appendix: Temporary Permission to Stay for Victims of Human Trafficking or Slavery (VTS) in the Immigration Rules.”

This letter makes clear that FNOs will be considered under section 65 of NABA 2022 and the Immigration Rules introduced on 30 January 2023 which allows for leave to remain not to be granted where the public order disqualification applies.

There is no public order exception in Article 14(1)(a) as in Article 13 ECAT which provides for a recovery and reflection period after a reasonable grounds decision. This is recognised in the explanatory note to section 63 of NABA 2022. Section 63(3)(f) provides that a threat to public order includes where a person is a foreign criminal within the meaning of section 32(1) of the UK Borders Act 2007. A foreign criminal includes a person who is convicted of an offence and sentenced to a period of imprisonment of at least 12 months.

The public order disqualification in the VTSP states that the respondent is not required to grant permission to stay where the person is a threat to public order and refers to the specific criteria in section 63(3) to (7) NABA 2022.

The deportation carve out in the DLP makes no reference to the definition of a foreign criminal or whether an individual poses a threat to public order. It makes no reference to the public order disqualification in respect of NRM support and is inconsistent with the Modern Slavery Statutory Guidance on Public Order Disqualification (referenced at page 13 of the VTSP).

The DLP provides for a grant of DL to DLMS Cases where the victim’s stay is ‘necessary owing to their personal situation’. Imposing a blanket requirement not to be subject to a deportation order fails to give effect to the obligation in Article 14(1)(a) to consider whether the applicant’s stay is necessary owing to their personal situation and is contrary to the transitional provisions in respect of DLMS Cases implementing KTT.

The deportation carve out excludes those who would benefit from the transitional provisions in the DLP even though they are not foreign criminals or a threat to public order as defined under the policy in force prior to 30 January 2023, the VTSP (post-30 January 2023), the UK Borders Act 2007 or NABA 2022. The deportation carve out excludes DLMS Cases on suitability grounds which have no foundation in the IR-VTS or the VTSP.

I conclude that the deportation carve out in the DLP goes beyond the scope of the public order disqualification and is unlawful because it is incompatible with the obligations in Article 14(1)(a) ECAT and the requirements in sections 63 and 65 NABA 2022 currently in force.