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R (EOG) v SSHD, CA-2021-000453 Court of Appeal (17 March 2022)

Date: 17/03/2022
Duncan Lewis, Main Solicitors, R (EOG) v SSHD, CA-2021-000453 Court of Appeal

The Court of Appeal provides welcome clarification that Articles 10, 12 and 13 of the Trafficking Convention are justiciable before the UK Courts but finds no obligation to issue leave to remain to victims of trafficking who cannot be removed from the UK. This case, heard together with that of KTT (CA-2021-000284) on 8-10 February 2022, considered the nature of the state’s obligations towards victims of trafficking while they are in the National Referral Mechanism, the process for victim identification, and whether existing Home Office guidance gave effect to those obligations. Background In December 2020, EOG succeeded in her application for judicial review of the Home Office policy on discretionary leave as applied to victims of trafficking. In a judgment handed down on 3 December 2020, Mr Justice Mostyn declared that the Home Office policy is unlawful, in that it failed to implement the UK’s obligation to protect victims of trafficking in the National Referral Mechanism (‘NRM’, the UK’s procedure for the identification of victims of trafficking) during the identification process. The obligation not to remove individuals from the territory following their first stage identification (the ‘reasonable grounds’ decision) while they awaited the second stage of the identification process, (the ‘conclusive grounds’ decision) was not fulfilled if applicants receive no formal recognition of their leave to remain during the process. EOG had entered the UK on a two-year working visa in September 2017, had been trafficked and exploited during that time and was accepted into the NRM in June 2019. Her visa, which was not of a type which could be extended, expired while she was in the NRM. She did not receive a conclusive grounds decision until April 2020 so between June 2019 and January 2021 when she received discretionary leave to remain, she was unable to work or support herself independently. She remained in the UK in order to assist the police with a criminal investigation and prosecution. The Secretary of State appealed the judgment. The Trafficking Convention (ECAT) contains several duties towards potential victims while they are in the identification process. Article 10(2) of the Trafficking Convention deals with identification and states that: ‘if the competent authorities have reasonable grounds to believe that a person has been victim of trafficking in human beings, that person shall not be removed from its territory until the identification process ….. has been completed and shall likewise ensure that that person receives the assistance provided for in Article 12, paragraphs 1 and 2.’ Article 12 provides for assistance to victims, which should include such assistance as is necessary for their ‘physical, psychological and social recovery.’ Article 13 (1) provides for a reflection and recovery period once an individual is in the NRM, and states: 1. Each Party shall provide in its internal law a recovery and reflection period of at least 30 days, when there are reasonable grounds to believe that the person concerned is a victim. …During this period it shall not be possible to enforce any expulsion order against him or her. The Court of Appeal allowed the SSHD’s appeal, finding that the obligation not to remove an individual during the identification process was a purely negative obligation and did not require the state to grant any kind of immigration status (beyond irremovability) to potential victims. Nonetheless, Lord Justice Underhill recognised that the extreme delays present in NRM decision-making negatively impacted on victims’ recovery. “… it does not take much imagination to appreciate that a prolonged period of uncertainty, during which a victim of trafficking is living at subsistence level and unable to engage in gainful employment … is liable to be profoundly demoralising and inimical to the social and psychological recovery which chapter III of ECAT… is designed to promote.” There were also several welcome points of clarification in that:

  1. The SSHD accepted EOG’s argument that Articles 10.2, 12.1 and 2 and 13.1 of ECAT are justiciable;
  2. The Court has accepted that the Appellant should consider issuing further documentation to potential victims of trafficking confirming their status in law that they cannot lawfully be removed;
  3. The SSHD has conceded (in terms that are not reflected in any published policy) that it is proper for potential victims who hold leave to remain at the point they enter the NRM to make a claim for discretionary leave under Article 4 ECHR in order to extend their existing leave;
  4. The SSHD has conceded (in terms that are not reflected in any published policy) that it is proper for potential victims who do not hold leave to make human rights or discretionary applications in which their status as a potential victim of trafficking will be a material consideration.
The Claimant is naturally disappointed that the Court, while recognising the negative impact of an extended period without leave to remain, did not find there existed any requirement to consider granting leave to potential victims of trafficking who cannot be removed from the UK. In her own words: ‘This judgment is personally deeply disappointing. I did not deserve to spend 15 months living in the shadow of mainstream society and living without any personal agency. I brought this case so no other survivor has to endure living with less human rights than their trafficker. The government has opted for a support system that asks survivors to sit in their trauma, halt their personal growth and recovery, and hold onto a dream of living freely and independently. Delays are littered throughout the justice system and NRM, so for survivors, they live like yesterday may as well be tomorrow. Leaving survivors in this state of limbo destroys their sense of self-worth and purpose in the world. If the National Referral Mechanism dehumanises victims before they get to support the prosecution of their traffickers, it should come as no surprise that prosecution numbers are dangerously low and the system is failing to keep the country safe. It was also personally difficult to listen to a lawyer for the government ask the court to ponder whether perhaps I chose ‘a line of work which is known to be potentially dangerous’, essentially inviting the judges to say that I deserved to be trafficked and raped. It is 2022, and yet it’s still seen as appropriate and safe to imply it is a woman’s fault that she was raped and trafficked.’ We have applied for permission to appeal. The Claimant was represented by Duncan Lewis Solicitors’ Civil Liberties and Human Rights Director, Zofia Duszynska, and caseworker, Shilpa Caute, instructing Amanda Weston QC of Garden Court Chambers and Miranda Butler of Landmark Chambers.

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