[2025] UKUT 00092 (IAC)

Do the “necessary… personal circumstances” of a victim of modern slavery who is prosecuted for the very offences he was forced to commit in circumstances of modern slavery include the need to “stay” in the host state to exonerate themselves? If, properly understood, Article 14(1)(a) of ECAT regards defending criminal proceedings on modern slavery grounds (or otherwise relying on domestic provision adopted pursuant to Article 26) as “necessary” owing to the “personal situation” of the trafficked person, the applicant will succeed on this issue. Whether that approach is right is the question that underpins this issue.

The Vienna Convention on the Law of Treaties requires the construction of international instruments to be approached on a purposive, and not necessarily literal basis. Article 31(1) of the Vienna Convention (quoted by Linden J at para. 39 of KTT in the High Court) provides that:

“A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”

Article 14(1)(a) must be the starting point for this analysis, viewed in the context of the treaty as a whole, including its objectives. PK (Ghana) stressed that “necessary” must be construed by reference to the object that is to be pursued: para. 44. It is common ground that the “personal situation” in Article 14(1)(a) means an individual’s personal situation as a victim of trafficking. The competent authority must determine whether the individual’s stay is “necessary” in light of, and with a view to achieving, the Convention’s objectives concerning the protection and assistance of victims of trafficking (PK (Ghana) at para. 44).

I have concluded that Article 14(1)(a) of ECAT does not regard the applicant’s stay as necessary owing to his personal situation in order to defend criminal proceedings arising out of modern slavery, for the following reasons.

First, defending criminal proceedings is a step far removed from the primary objectives of protecting and assisting the needs of victims of modern slavery as expressed by the substantive provisions of Chapter III. The provision made under Chapter III to further the protection and assistance of victims of trafficking includes the identification of victims illuminates these objectives. The structure of Chapter III is identification of victims (Article 10), the protection of their private life (Article 11), assistance for victims’ physical, psychological and social recovery (Article 12), recovery and reflection (Article 13), the issue of residence permits (Article 14, the present issue), compensation and redress (Article 15), repatriation and return of victims (Article 16) and gender equality (Article 17). These factors contribute to meeting some of the therapeutic and recovery needs experienced by victims of modern slavery, and make provision for a victim’s need to stay in the host state as an adjunct to those objectives. In my judgment, the objectives pursued by these provisions are not sufficiently related to the personal circumstances of a defendant to criminal proceedings to bring that a defendant to criminal proceedings within Article 14(1)(a).

The judgment of the Court of Appeal in KTT helps to calibrate the linkage required: KTT’s stay was necessary because she was pursuing a claim for asylum based on her status as a victim of modern slavery. Pursuing a modern slavery-based claim for asylum is, on any view, a much stronger link between the need to stay for a trafficking related reason than needing to stay to rely on the non-punishment provision in Article 26 (see below).

Secondly, the inclusion of paragraph (1)(b) of Article 14 sheds a degree of light on the meaning and scope of paragraph (1)(a). Ordinarily, one would expect a victim’s need to cooperate with the authorities in the investigation or prosecution of those responsible for subjecting that victim to modern slavery to amount to a significant facet of that person’s “personal situation”, for which their stay would be “necessary”, if one gives those terms meanings that are commensurate with the breadth for which Mr Buttler contends. The provisions of ECAT tell in the opposite direction, however. On a purely textual level, the inclusion of paragraph (1)(b) suggests that paragraph (1)(a) would not otherwise have the meaning and scope for which Mr Buttler contends. If it did, paragraph (1)(b) would not have been necessary.

Accordingly, Article 14(1)(b) defines – and thereby limits – the reasons for which, in principle, a victim’s stay may be regarded as “necessary” for reasons connected with the domestic criminal justice process in the host territory. Had the framers of ECAT sought to extend the protection of Article 14 to those charged with criminal offences, Article 14(1)(b) would have been the place to say so. It does not. I accept Mr Irwin’s submission that it would be surprising that, in addition to the express provision made by Article 14(1)(b) for matters relating to criminal investigations and prosecutions, there existed a separate, implied, basis for a victim of trafficking to be granted a residence permit in the host country in order to be prosecuted, under the auspices of Article 14(1)(a). The fact that there is no such provision is entirely consistent with the broader approach of Chapter III to the protection and recovery of victims of trafficking.

Thirdly, this conclusion is reinforced when one looks to the overall structure of the Convention and the location of Article 14(1)(a) within it (namely Chapter III). The themes covered by each of the ten chapters of the Convention are as follows:

It is significant that elsewhere, namely chapters IV and V, ECAT makes express substantive and procedural provision concerning the criminal law, investigations and prosecutions. There is no mention in, or cross-reference between, those provisions and the need for a residence permit under Article 14 in relation to any category of victim of modern slavery, still less for those charged with criminal offences.

Fourthly, Chapter IV makes provision concerning victims of modern slavery who are prosecuted in respect of offences they were forced to commit. The obligation is contained in Article 26, entitled “non-punishment provision”:

“Each Party shall, in accordance with the basic principles of its legal system, provide for the possibility of not imposing penalties on victims for their involvement in unlawful activities, to the extent that they have been compelled to do so.”

The high watermark of Article 26 obliges parties to the Convention to provide for the “possibility” of not imposing penalties on the victims of modern slavery for offences they were forced to commit. There is no suggestion that the Convention mandates the provision of a complete defence as a matter of criminal law (although that would be one way to meet that obligation: see section 45 of the 2015 Act, which Mr Irwin confirmed in his submissions is the means by which the United Kingdom has chosen to implement this obligation). Put another way, at its highest Article 26 addresses the punishment to be faced by victims of modern slavery, rather than their substantive criminal liability.

It follows that Mr Buttler’s submission that the Convention views the stay of a defendant to criminal proceedings as being “necessary owing to their personal situation” (Article 14(1)(a)) in order to enable him or her to advance a “complete defence” to an alleged offence (as Mr Buttler’s skeleton argument put it at para. 74 on page 30) is without merit. The submission exceeds the minimum standards imposed by the Convention. It is based on the footing that it is “necessary” for a victim of modern slavery to “stay” in order to enjoy a benefit that the Convention itself does not confer, namely a complete defence to charges. It is difficult to construe Article 14(1)(a) as requiring the host country to regard a victim’s stay as necessary such that a residence permit must be issued in order to defend criminal proceedings on modern slavery grounds in circumstances where, pursuant to Article 26, all that the Convention requires is for States Parties to provide for the “possibility of not imposing penalties on victims for their involvement in unlawful activities…”

While it could be said that there is an equal need to remain in-country to take advantage of the non-punishment provision, I do not consider that that would be an answer to this point. The imposition or non-imposition (as the case may be) of a penalty is subsidiary to the substantive process of assigning criminal liability. If the Convention does not regard a stay as necessary in order to contest substantive criminal liability, it would be surprising if it regarded the stay of a victim of modern slavery to be necessary in order to participate in an ancillary process.

Fifthly, some support is found for my conclusion in the Explanatory Report to the Convention. The Explanatory Report has been used as an aid to ECAT’s interpretation on many occasions (see, for example, Rantsev v Cyprus and Russia (2010) 51 EHRR, para. 161; Chowdury and Others v Greece (21884/15), paras 38 and 93; R (TDT (Vietnam)) v Secretary of State for the Home Department [2018] 1 WLR 4922, in which the Explanatory Report was described as “instructive” at para. 10; PK (Ghana) at paras 36 and 60 (Footnote: ¹); R (JP) v Secretary of State for the Home Department [2020] 1 WLR 918 at para. 27; KTT (CA) at para. 47). This point may be stated simply: nothing in the detailed narrative provided in the Explanatory Report supports the applicant’s submission. The focus of Article 14, and paras 180 to 190 of the Explanatory Report, lies in the provision of residence permits as a means to secure the assistance of victims of modern slavery in the criminal process (para. 181, final sentence), or on account of the victim’s needs (para. 184). There is no mention of a stay being necessary to defend criminal proceedings, or even to rely on the non-punishment provision in Article 26, in those paragraphs or elsewhere in the Explanatory Report.

Drawing these factors together, I conclude that Article 14(1)(a) of ECAT does not require the competent authority to consider that the stay of a victim of trafficking is necessary owing to their personal situation on account of the victim being prosecuted for offences arising out of their modern slavery. That is consistent with a textual analysis of the Convention, in light of its aims, purpose and context. It would be surprising if the framers of the Convention sought to confer a substantive right of residence, and the attendant benefits deriving from a residence permit, on defendants to criminal proceedings, in circumstances where there is no mention of that objective in the text of the Convention, and the Explanatory Report is silent on the point.

Applying that analysis to the facts of the applicant’s case, the Secretary of State did not err in her application of the DL policy and her conclusion that the applicant’s stay was not necessary owing to his personal situation as a victim of modern slavery.

This point may be tested by the fact that, without a “residence permit” granted in reliance on Article 14(1)(a), and while he was present without leave to remain, the applicant successfully persuaded the CPS to drop the charges against him. The applicant did not require MS leave – or any other form of leave – in order to achieve that objective. He successfully achieved a result which went beyond the minimum standards of the Convention (that is, the non-punishment principle) in circumstances in which his “stay” was not regarded as “necessary” by Article 14(1)(a).

I therefore dismiss this application for judicial review insofar as it relates to issue (1).