[2024] UKUT 00067 (IAC)

In EOG and KTT v SSHD [2022] EWCA Civ 307 (KTT), Underhill LJ (with whom Dingemans LJ and Sir Geoffrey Vos MR agreed) considered justiciability as a preliminary issue and reviewed a number of cases in which the respondent’s guidance about the treatment of victims of modern slavery and trafficking had been challenged on the basis they did not give proper effect to the requirements of chapter III of ECAT. It was recognised in all these cases that ECAT was not incorporated into UK law and did not have ‘direct effect’. However, insofar as guidance intended to, and purported to, give effect to ECAT and failed to do so, that would be a justiciable error of law and a decision based on that error would be unlawful ([25]-[30]).

Underhill LJ found that Linden J’s analysis of this issue at [15]-[59] of his judgment (R (KTT) v SSHD [2021] EWHC 2272 (admin)) was convincing and made two points in clarification. Firstly, many of the obligations imposed by ECAT were in general terms and it was a matter for the Government (subject to public law constraints) in what manner it chooses to implement them. It was always open to the Government, since ECAT was unincorporated, to make it clear that it has chosen not to give effect to it. As a matter of constitutional principle such a decision could not be challenged in the domestic courts. Secondly, the conclusion that the guidance was unlawful was not the only possible outcome. Where the guidance was ambiguous it may be enough for the court to hold that a construction which complies with ECAT should be preferred to one which did not ([32]-[34]).

Underhill LJ at [37] concluded that in principle there were two questions in cases of this kind: “(1) whether the guidance is in the relevant respects intended by the Secretary of State to give effect to the requirements of ECAT and (2) whether it in fact does so.”

In considering the first question, Underhill LJ noted there were a large number of revised versions of the original guidance. The version relevant in KTT’s case included a statement that this guidance is based on ECAT and the sections dealing with the grant of DL on grounds of personal circumstances plainly corresponded to Article 14(1)(a) of ECAT. Underhill LJ found that it was plain that the intention was to give effect to Article 14 (1)(a) ([68]-[77]).

Underhill LJ again endorsed the reasoning of Linden J when considering whether the guidance, as applied in KTT’s case, did give effect to Article 14(1)(a) and concluded that it did not do so. In summary, Article 14(1)(a) of ECAT required a grant of leave to remain to allow an established victim of trafficking to pursue an asylum claim which is related to the claimant’s situation as a victim of trafficking. The relevant guidance in force at the time did not provide for this situation.

The Court of Appeal upheld the order of Linden J:

“1.

On their true construction, versions 2, 3 and 4 of the Defendant’s policy “Discretionary Leave for Victims of Modern Slavery” (“the MSL policy”) require the defendant’s decisions on the grant of leave to remain to be made in accordance with Article 14(1)(a) ECAT, which requires the grant of a residence permit to a confirmed victim of modern slavery if their stay in the UK is necessary owing to their personal situation.

2.

The statutorily-protected stay in the United Kingdom of a confirmed victim of trafficking pending the resolution of an asylum claim made by them which is based on a fear of being re-trafficked is capable of constituting a stay which is necessary owing to their personal situation within the meaning of Article 14(1)(a) ECAT.”