[2024] UKUT 00067 (IAC)

The VTSP demonstrates a distinct shift in policy intention whereas the DLP expresses no such intention notwithstanding it was published after section 65 NABA 2023 came into force.

In addition, the DLP identifies two categories of modern slavery cases. Post-30 January 2023 modern slavery cases will be considered under the VTSP (VTS Cases) based on the criteria in section 65 NABA 2022. Pre-30 January 2023 modern slavery cases will be considered under the DLP (DLMS Cases).

The DLP makes specific provision for individuals who have received a positive CGD and made an asylum claim, based in material part on a well-founded fear of re-trafficking, before 30 January 2023 which has not been finally determined (DLMS Cases). The DLP states at the outset (page 6) that DL will normally be granted in these circumstances on the grounds that their ‘stay in the UK is necessary’ to pursue their asylum claim.

The respondent accepts these are transitional provisions, but submits there was no clear commitment to Article 14(1)(a) ECAT in the DLP and no basis for that inference. To do so would be inconsistent with the VTSP which expressly takes the position that the respondent does not intend to apply Article 14(1)(a) as in KTT.

The DLP states that DLMS Cases were potentially entitled toDL had their applications for leave to remain been determined under Home Office policies prior to 30 January 2023 and that they may be entitled to DL because those policies implement Article 14(1)(a) ECAT. The DLP then sets out the decision in KTT confirming that DLMS Cases required consideration for a grant of leave because their stay in the UK was necessary, owing to their personal situation as a victim of trafficking, in order to pursue their asylum claim.

I do not accept that the use of the words ‘potentially entitled’ or ‘may be entitled’ merely acknowledges that DLMS Cases could have qualified for DL but did not because their applications were not decided before 30 January 2023. I am not persuaded that these are benevolent transitional provisions that might have resulted in a grant of leave under KTT, had they been decided sooner. The DLP was updated on 16 March 2023 to implement case law in relation to the section on modern slavery and human trafficking cases. There is no reason for these transitional provisions if they do not apply to decisions made on DLMS Cases after 30 January 2023.

Nor am I persuaded that these words indicate that the respondent did not intend to apply ECAT or KTT. The DLP makes clear on page 6 that DL will be granted in line with the judgment in KTT. Under the heading ‘when to consider DL’ the DLP states that those individuals who were eligible for consideration of leave under the KTT judgment prior to 30 January 2023 will not have their applications determined under the VTSP. The DLP specifically states that DL must be considered and will normally be granted to individuals in DLMS Cases. Therefore, section 65 NABA 2022 does not prevent DLMS Cases from benefitting from the judgment in KTT.

I am of the view that properly interpreted the DLP provides that DLMS cases should be decided in accordance with Article 14(1)(a) given the lack of an express intention to the contrary and the clear and explicit reference to ECAT and KTT. I find the DLP was intended to give effect to Article 14(1)(a) ECAT in respect of pre-30 January 2023 modern slavery and human trafficking cases.