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Secretary of State’s secret unlawful policy frustrated the rights of 1500 modern slavery victims

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The High Court held that the Home Office ran an unlawful, secret policy, applied to at least 1500 confirmed victims of modern slavery. It effect was to frustrate their right to leave to remain following the landmark ruling in R (KTT) v SSHD (High Court [2022] 1 WLR 1312; Court of Appeal [2023] QB 351), which held that confirmed victims with unresolved asylum claims based on re-trafficking risk were entitled to modern slavery leave under the Home Office’s published policy.

The judgment refers to disclosure which revealed the Home Office was concerned that changing its published policy to reverse the landmark ruling would attract criticism from Parliamentarians advocating for protecting victims of modern slavery, including “specifically Sir lain Duncan Smith and Rt Hon Mrs Theresa May” (para 46). Instead, the Home Office represented to the world it was complying with the published policy, whilst at the same time secretly instructing officials not to issue decisions refusing Modern Slavery Leave to confirmed victims with pending asylum claims or appeals. Officials were told not to serve decisions so that victims would not know about the secret policy. If a victim happened to bring legal proceedings to challenge the Home Office’s failure to make a decision, the Secretary of State would settle the claim by granting leave. The High Court held that “not only did this rob the [secret] policy of coherence, it strongly supports the Claimant’s contention that leave to remain was offered in these circumstances precisely to keep the policy secret”. The Home Office only admitted what it had been doing when faced with the evidence prepared in support of this claim from Asylum Aid, Deighton Pierce Glynn, Wilson’s, the Anti-Trafficking and Labour Exploitation Unit (ATLEU) and the Helen Bamber Foundation.

The Claimant (XY) is a confirmed victim of modern slavery who was eligible for modern slavery leave under the published policy as interpreted in KTT. Instead of granting him leave, the Home Office applied the secret policy and prepared two refusal decisions which it withheld from him. The High Court held that the the secret policy was in breach of the common law (the Lumba principle) and its application to XY violated his rights pursuant to:

  • Article 8 ECHR (because the interference with his entitlement to leave for over 12 months was not “in accordance with the law” and, additionally, because the failure to serve decisions breached his procedural rights); and
  • Article 14 ECHR (read with Articles 4, 8 and A1 P1) because he was treated differently to a confirmed victim who had not claimed asylum (to whom the secret policy was not applied).

The High Court also held that Government breached its duty of candour, resulting from an approach of “at almost every stage, revealing as little as possible”, which meant that the Claimant “had laboriously to drag [information] out of the [Government]” about the secret policy.

The case will be transferred to the King’s Bench Division for an assessment of damages. It is anticipated that many other confirmed victims of modern slavery may bring claims on the same basis.

Chris Buttler KC and Zoe McCallum represented the Claimant in the case, instructed by Asylum Aid.

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