The Court of Appeal dismisses the Secretary of State’s appeal in test case brought by a confirmed victim of modern slavery challenging the refusal to grant her leave whilst she pursues an asylum claim – and upheld her appeal in another test case joined to it


The Court of Appeal has today dismissed the Secretary of State’s appeal against the decision on Linden J in R (KTT) v Secretary of State for the Home Department[2021] EWHC 2722 Admin in a judgment which 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 based on fear of being re-trafficked.

Having been trafficked illegally into this country, modern slavery leave 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 Court of Appeal held in KTT that Linden J was correct to conclude that it is the Secretary of State’s policy to make decisions on modern slavery leave in accordance with the European Anti-Trafficking Convention. The Secretary of State had materially misdirected herself by applying too stringent a test for granting leave than Article 14 required. Construing the Convention, the Court of Appeal decided that Linden J was correct that pursuit of an asylum claim based on re-trafficking risk is capable of being a “stay” which is “necessary owing to their personal situation” in accordance with Article 14(1)(a) of the Convention.

The appeal in KTT was joined to the Secretary of State’s appeal against the decision of Mostyn J in R EOG v Secretary of State for the Home Department[2020] EWHC 3310 Admin. That appeal, unlike the appeal against Linden J’s judgment, was successful, with the effect that the Secretary of State is not (as Mostyn J had held) under an obligation to promulgate a policy governing the grant of modern slavery leave to potential victims of trafficking (as distinct from confirmed victims). However, the Court of Appeal drew attention to the Intervener’s submission that the Secretary of State’s failure to issue formal documentation to potential victims evidencing their irremovability may be contrary to the Convention and urged the Secretary of State to “consider her position” on this point.

In its closing observations, the Court of Appeal also described “the extraordinary length of time which it now takes for the Secretary of State to reach both conclusive grounds decisions in the case of confirmed victims of trafficking and decisions in asylum claims” as a problem which ought to be solved “in the interests of potential and confirmed victims of trafficking, asylum seekers, the Home Office and the Courts”.

Chris Buttler QC and Zoe McCallum acted for the Claimant, instructed by Ahmed Aydeed of Duncan Lewis, assisted by Kathryn Nguyen. Samantha Knights QC and Ayesha Christie acted for the AIRE Centre (the intervener), instructed by Freshfield Bruckhaus Deringer.

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