[2025] UKUT 00092 (IAC)

The DL policy was amended on 30 January 2023 in light of section 65 of the Nationality and Borders Act 2022, which came into force on that day. Section 65 places Article 14 of ECAT on a statutory footing with effect from that date. Those developments do not affect my analysis in these proceedings. The discussion and analysis that follows relates to the legal framework applicable to the 12 December decision, before those provisions came into force.

While the above provisions of ECAT had not been incorporated into domestic law at the date of the 12 December decision, the Secretary of State accepts (and it is not in dispute in these proceedings) that her policy at the time of that decision was to adopt and reflect those requirements as a matter of domestic policy, and that the DL policy should be read as intending to give effect to the requirements of Article 14(1). That means that a decision that is inconsistent with Article 14(1) would, in principle, be flawed as a matter of domestic public law, since the Secretary of State is obliged to abide by her policy in the absence of good reasons to depart from it.

The evolution of the above approach of the courts and the Secretary of State to the role of ECAT, an unincorporated international treaty, may be traced across a number of authorities. I set out a relevant selection below.

In R (Atamewan) v Secretary of State for the Home Department [2013] EWHC 2727 (Admin), the Secretary of State accepted that, insofar as her policy sought to give effect to the terms of ECAT and failed to do so, that would be a justiciable error of law (para. 55), subject to certain qualifications (see, e.g., paras 89 and 90).

In R (Galdikas) v Secretary of State for the Home Department [2016] EWHC 942 (Admin), Sir Stephen Silber rejected the proposition that ECAT, and in particular Article 12 (assistance to victims) was part of English law (para. 57). But Sir Stephen accepted that, to the extent a policy or guidance issued by the Secretary of State was intended to give effect to ECAT (or as was relevant in those proceedings, Article 12 of it), conventional public law principles would be engaged to require the Secretary of State to apply those aspects of the Convention, or provide good reasons for departing from that policy. Having applied those principles, Sir Stephen did not accept that the entirety of ECAT, or even the whole of Article 12 could be said to apply as a matter of domestic law in that way. He did accept that the policy of the Secretary of State was to approach applications for MS leave consistently with the Convention, and to that extent that issue was justiciable in those proceedings: para. 66.

In R (PK (Ghana)) v Secretary of State for the Home Department [2018] EWCA Civ 98 the Secretary of State again conceded that the relevant policy guidance sought to give effect to ECAT. To the extent it failed to give effect to that Convention, that would be a justiciable error of law: see para. 34. The court addressed what amounted to “necessary” for the purposes of Article 14(1)(a). See para. 44:

“‘Necessary’, in this context, means required to achieve a desired purpose, effect or result. In Article 14(1)(b), the purpose for which it is necessary for a person to stay in the country is express: the competent authority has to consider that the person staying in the country ‘is necessary for the purpose of their cooperation with the competent authorities in investigation or criminal proceedings’. In Article 14(1)(a), the purpose is not express: but the provision is deep within the Trafficking Convention which (as [counsel for the Secretary of State] rightly accepted) must be construed purposively. Thus, ‘necessary’ in Article 14(1)(a) has to be seen through the prism of the objectives of the Convention: and the competent authority has to consider whether the person staying in the country is necessary in the light of, and with a view to achieving, those objectives.” (Emphasis added)

The preamble to ECAT states that the paramount objectives of the Convention are:

“respect for victims’ rights, protection of victims and action to combat trafficking in human beings…”

See also Article 1(b) which states that one of the Convention’s purposes is:

“to protect the human rights of the victims of trafficking, design a comprehensive framework for the protection and assistance of victims and witnesses, while guaranteeing gender equality, as well as to ensure effective investigation and prosecution…”

Para. 50 of PK (Ghana) summarised those objectives as “the protection and assistance of victims of trafficking”.

In R (EOT) v Secretary of State for the Home Department, R (KTT) v Secretary of State for the Home Department [2022] EWCA Civ 307, the Court of Appeal held that the DL policy then in force “has from the start purported and been intended to give effect to the corresponding provisions of Chapter III of ECAT…” (para. 75).

The court upheld the judgment of Linden J sitting in the Administrative Court in KTT which identified another basis upon which a victim’s “stay” may be necessary for the purposes of Article 14(1)(a). KTT had been recognised as a victim of human trafficking and claimed asylum on the basis that she faced a risk of being re-trafficked. The issue was whether her “stay” was “necessary” as a facet of her “personal situation” pending the final determination of her asylum claim for the purposes of Article 14(1)(a) (during which period she was statutorily irremovable from the United Kingdom in any event). Linden J’s conclusion that KTT’s stay was necessary was upheld by the Court of Appeal, with the consequence that she was entitled to MS leave under the DL policy: see paras 80 to 81.

Mr Buttler appeared for the claimant in KTT at first instance and on appeal. He conceded in those proceedings that the reference to a victim’s “personal situation” had to be construed having regard to the purpose of Chapter III of the Convention, as characterised by Hickinbottom LJ in PK (Ghana) (see para. ‎27, above). See para. 78 of KTT in the Court of Appeal:

“Mr Buttler accepts that… the reference must be to the victim's situation as a victim of trafficking; but he submits that it is clear as a matter of language that it is the stay, not the issue of the residence permit, which must be ‘necessary’.”  (Emphasis supplied)

Underhill LJ accepted the above concession at para. 86, holding that the concession meant that the “‘personal situation’ referred to in Article 14(1)(a) must, on a purposive construction, refer to the victim’s situation qua victim.” The court did not rule on whether the concession was necessary but accepted it. Mr Buttler maintained the concession before me. I accept the concession (which represents the approach I would have been minded to take but for the common ground that exists on this issue in any event).