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New test for victims of trafficking

Legal background

Article 4 of the European Convention on Human Rights (“the ECHR”) provides that no one shall be held in slavery or servitude, and no one shall be required to perform forced or compulsory labour.

The Council of Europe Convention on Action against Trafficking in Human Beings 2005 (CETS No 197) focuses not only on the prevention of trafficking and the prosecution of traffickers, but also on the protection of victims of trafficking. Article 10(1) requires each party to provide its competent authorities with persons who are trained in, amongst other things, identifying and protecting victims, so that victims can be identified and, “in appropriate cases”, issued with residence permits under the conditions provided for in Article 14. Article 14(1)(a) provides that each Party shall issue a renewable residence permit to victims, in case the competent authority considers that their stay is necessary owing to their personal situation.

The United Kingdom has not enacted any national legislation to give legal effect to the material parts of the Trafficking Convention.  It has sought to satisfy the obligations imposed upon it by the Convention through executive policy, notably the National Referral Mechanism (“the NRM”), a framework for identifying victims of human trafficking or modern slavery and ensuring they receive the appropriate support. A conclusive decision that the person was trafficked does not automatically lead to a grant of leave to remain.

Court of Appeal Judgment

On 13 February 2018 the Court of Appeal gave judgment in the case of PK (Ghana) v SSHD. The case involved a challenge to a decision to refuse to grant discretionary leave to remain to a confirmed victim of trafficking. A confirmed victim is an individual with a positive conclusive grounds decision. The case considered whether the Secretary of State’s policy gives effect to the obligations of the Convention. The Court unanimously concluded that it failed to properly to reflect the obligation imposed upon the United Kingdom in Article 14(1)(a) of the Trafficking Convention.

The test

The Trafficking Convention does not give a foreign national an automatic right to remain in a particular country by virtue of being a victim of trafficking alone; but it does require a state to grant such a victim a residence permit where the competent authority in that state considers that that person’s stay in the country is necessary owing to his or her personal situation.

The Secretary of State stated that a victim of trafficking shall be granted discretionary leave if their personal circumstances are compelling and maintained that this is consistent with, and properly reflects, the requirement that a residence permit shall be granted to a person if their stay is necessary owing to their personal situation.

In PK (Ghana) the Court of Appeal found that whether an individual’s stay in a member state is “necessary owing to their personal situation” has to be considered in light of and with a view of achieving the objectives of the Convention. The relevant objective is to protect and assist victims of trafficking.

The Court of Appeal further found that the Convention does not give the competent authority an open-ended discretion as was argued by the Secretary of State. The Appellant argued that the Secretary of State’s Guidance imposed too high a threshold in requiring “compelling circumstances”.

The test is therefore one of necessity and there is no additional requirement to show compelling circumstances. This lowers the threshold which has to be met to the one set by the Trafficking Convention and removes a hurdle for victims of trafficking in obtaining a positive outcome.

Home Office Guidance

On 21 February 2018, the Home Office published new interim operational guidance on discretionary leave for victims of modern slavery. The notice does not apply to refusals or grants of discretionary leave outside the modern slavery criteria or refusals or grants under other routes such as asylum. All refusal decisions are placed on hold except where the confirmed victim has been granted refugee leave. In these cases refusals of discretionary leave are issued as normal.

Contact our Immigration Lawyers in London

For expert advice in relation to a human trafficking claim, contact our immigration barristers in London on 0203 617 9173 or via our enquiry form.


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