Case Reference R (EOG and KTT) v SSHD, Court of Appeal

The Court of Appeal has today handed down judgment in these linked claims, which raise important points of practice for all those representing victims of trafficking. In EOG the Court concluded that potential victims of trafficking within the National Referral Mechanism were not entitled to leave to remain, but did accept that the significant delays in decision-making negatively impacted victims’ recovery. The Court concluded that the Home Office should consider issuing further documentation to potential victims of trafficking, confirming that they cannot be removed from the UK while their claims are under consideration. EOG has sought permission to appeal to the Supreme Court. In KTT, the Court of Appeal upheld the judgment of Linden J in the court below, concluding that recognised victims of trafficking who had claimed asylum should be granted leave after a Conclusive Grounds decision was made and while their asylum claim was under consideration, on the basis that this fell within Article 14 of ECAT. The Home Secretary had raised a preliminary issue in both cases, namely that the European Convention on Action against Trafficking (‘ECAT’) was not justiciable as an unincorporated treaty. That point was in the event not pursued by counsel for the Secretary of State and so it is clear (at least at this stage) that Articles 10 – 14 of ECAT are justiciable by UK courts. Practitioners should note the following points:

• The Home Office has indicated its intention to appeal to the Supreme Court, so the issue of justiciability may be reconsidered in due course
• The Home Office conceded during these claims that, despite it not being reflected in any published policy, potential victims of trafficking who hold leave to remain at the point they enter the NRM could make a claim for discretionary leave under Article 4 ECHR and thereby extend their existing leave under s. 3C of the Immigration Act 1971.
• The Home Office made a further concession (again not reflected in any published policy that potential victims of trafficking who do not have leave to remain when referred into the NRM could make human rights or discretionary leave applications on the basis of their status as potential victims within the NRM.

EOG made the following comments on the judgment:

"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."

Miranda Butler acted for EOG, led by Amanda Weston QC and instructed by Zofia Duszynska and Shilpa Caute of Duncan Lewis.