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: