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Confirmed victim of modern slavery wins test case challenging Home Office’s refusal to grant her discretionary leave to remain in the UK 

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Immigration, Asylum and Free Movement

A confirmed victim of trafficking last Tuesday obtained judgment that the Home Office’s failure to grant her discretionary leave to remain as a victim of modern slavery (“MSL”) was unlawful because the decision maker did not consider whether she needed to stay in the country to pursue her asylum claim based on fear of re-trafficking.

The decision opens the door for the Claimant – and potentially thousands of other victims of modern slavery in the same position – to regularise their status in the UK on a temporary basis, pending final resolution of their protection claims. MSL is typically for a period of 30 months and entitles confirmed victims to work and access Universal Credit. Having been trafficked illegally into this country, MSL is often the only means by victims of modern slavery once freed can be lifted out of the “hostile environment” policy as they endure what is typically multi-year delays in the resolution of their protection claims.

The Claimant was trafficked from Vietnam to the UK and then forced into prostitution and to work on cannabis farms in brutal conditions. As a result, she suffers from PTSD and anxiety and depressive disorder and required anti-psychotic and anti-depressant medication. She claimed asylum based on fear of being re-trafficked in January 2019 but the Home Office did make a decision on that claim until June 2020 and a further delay was anticipated to resolve her appeal before the First Tier Tribunal. By the time of the hearing before Linden J, she had been frozen in the asylum system for more than 2.5 years.

Linden J rejected the Secretary of State’s argument (based on the Supreme Court’s recent decision in R (SC) v SSWP [2021] UKSC 6) that the Claimant’s claim was not justiciable because it required the domestic courts to adjudicate upon the meaning of an unincorporated international treaty. He ruled that on its true construction, the MSL Policy intends to commit the Secretary of State to making decisions as to MSL in accordance with Article 14 of the European Anti-Trafficking Convention. On that basis, it was open to the domestic Courts to determine whether the Defendant had interpreted Article 14 correctly. Construing Article 14, Linden J found that pursuing an asylum claim based on fear of being re-trafficked is a relevant “personal situation” within the meaning of Article 14 – and may therefore require the grant of leave to those whose stay in the jurisdiction is necessary for that purpose.

Chris Buttler QC and Zoe McCallum acted for the Claimant, instructed by Duncan Lewis.

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