[2025] UKUT 00092 (IAC)

The Statement of Facts and Grounds and the applicant’s skeleton argument extended to over 90 pages. The issues were considerably narrower in the manner in which they were presented by Mr Buttler. What follows is necessarily a summary of his main points.

Mr Buttler’s primary submissions were that the 12 December decision was flawed in three ways. First, it failed to address the applicant’s need to stay in the United Kingdom to advance a modern slavery defence to the criminal charges against him (issue (1)). Secondly, it failed to engage with the Competent Authority’s failure to refer the domestic servitude in 2013 to the Metropolitan Police Service (issue (2)). Thirdly, it failed to apply anxious scrutiny to the medical evidence provided to the Secretary of State about the applicant’s need for therapy in order to address the trauma of his trafficking experiences. The medical evidence demonstrated that the applicant would need to be granted leave to remain in order effectively to commence the necessary therapy. That was issue (3). In Mr Buttler’s submission, it was only necessary to establish one of those three possible heads of claim in order for the applicant’s judicial review to succeed.

As to issue (1), Mr Buttler submitted that the 12 December decision failed to engage with the applicant’s need to remain in the United Kingdom in order to mount a modern slavery defence to the two charges of possession with intent to supply a Class A drug. The applicant plainly had to remain in the United Kingdom in order to defend the criminal proceedings. He would not have been able to exonerate himself for the crimes he was forced to commit as a result of his modern slavery. Those details were before the Secretary of State including the defence statement relied on by the applicant and the criminal proceedings. It was plainly necessary for the applicant to “stay” in the United Kingdom, for the purposes of article 14 (1). He should have been granted MS leave on that basis, Mr Buttler submitted.

As to issue (2), Mr Buttler stressed that the Competent Authority was obliged expressly to refer both periods of modern slavery to which the applicant was subjected to the police. While the Competent Authority referred the second period of the applicant’s modern slavery to the relevant police force, it did not refer the earlier period of domestic servitude. The applicant’s stay in the United Kingdom was therefore necessary pending the investigation of the 2013 domestic servitude. Unless and until the Metropolitan Police Service informed the Secretary of State that the applicant’s presence in the United Kingdom was no longer necessary in order for those offences to be investigated, it was incumbent upon the Secretary of State to grant the applicant MS leave. Mr Buttler relied upon scope and extent of the investigative duty to which contracting parties to the ECHR are subject pursuant to their duties under Article 4 of that convention (prohibition of slavery and forced labour).

As to issue (3), Mr Buttler relied upon the Thomas report. Dr Thomas had concluded that, although some of the applicant’s medication would be available in Nigeria, it would not be accessible to him. The Thomas report demonstrated that the applicant experiences significant treatment needs. Those included moderate to severe symptoms of a major depressive disorder with additional psychotic features (page 205), and a range of other conditions. The applicant would not be able to engage with treatment for those conditions in the absence of the stability that would have been provided by a grant of MS leave. The 12 December decision failed to engage with that issue.

In Mr Buttler’s submission those public law errors amounted to breaches of Article 8 ECHR. That was because Lane J’s judgment in XY established two propositions. First, a denial of MS leave would, in principle, be capable of engaging Article 8 ECHR (and it was not open to the Secretary of State to contend otherwise, in light of XY). Secondly, where Article 8(1) is engaged, it will be breached if the decision in question was vitiated by a public law error. That is based on the requirement in Article 8(2) for any interference with Article 8(1) rights to be “in accordance with the law…”

As to the engagement of Article 8(1), Mr Buttler submitted that the 12 December decision had a significant adverse impact on the applicant’s mental health, and delayed his ability to be treated for the trauma that had been caused by his experiences of modern slavery. Mr Buttler also submitted that the applicant’s financial circumstances were such that Article 8(1) ECHR was engaged by the 12 December decision. In the absence of any leave to remain, the applicant was unable to work, and was unable to access the social assistance benefits he would otherwise be entitled to. That had a profound effect on the applicant, particularly in relation to his ability to see his British children.

Drawing those submissions together, Mr Buttler submitted that the Secretary of State had breached her DL policy to apply ECAT in the three ways specified, any one of which was sufficient to establish a breach of Article 8 ECHR. The applicant was thus entitled to damages, and an order providing for their assessment.