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Re: EOG -v- The Secretary of State for the Home Department

Tuesday 8 – Thursday 10 February 2022

Re: EOG -v- The Secretary of State for the Home Department
Re: KTT -v- The Secretary of State for the Home Department

EOG – The Secretary of State appeals an Order of Mostyn J. of 03 December 2020 by which he allowed EOG’s judicial review claim and granted declaratory relief only.

The declaration in the Order of 03 December 2020 is that:

The SSHD has unlawfully failed to implement her obligations under Article 10(2) of the European Convention Against Trafficking to protect persons from removal from the territory of the UK after she has decided that there are reasonable grounds to believe that they are victims of trafficking because she does not have a specific policy concerning the circumstances in which, and the terms upon which, appropriate grants of interim discretionary leave may be made to such persons if:
(a) They have leave to remain in the UK at the time they receive that reasonable grounds decision, but that leave expires during the period whilst they are awaiting a decision on whether there are conclusive grounds to believe that they are a victim of trafficking; or
(b) They do not have leave to remain in the UK at the time they receive that reasonable grounds decision.

EOG is a national of New Zealand. She entered the UK on 01 September 2017 with leave under the youth mobility scheme. On 11 September 2018 she was referred to the national referral mechanism. A negative reasonable grounds decision was made within 6 days but the SSHD agreed to reconsider it and she waited 273 days before a positive conclusive grounds decision was made. A conclusive grounds decision was made on 28 April 2020, 595 days after her referral to the NRM. This should have led to an automatic consideration of discretionary leave but by November 2020 EOG had not been granted or refused leave. EOG’s leave expired on 20 September 2019 and she has been unable to work and subject to the hostile environment since that date.

KTT – The Secretary of State appeals Linden J’s order of 25 October 2021 whereby Order dated 12 October 2021 Linden J allowed KTT’s judicial review claim in part and the parties were directed to agree as far as possible, the issue of relief. By Order of 25 October 2021 Linden J. declared that:

1. On their true construction, versions 2, 3 and 4 of the Defendant’s policy “Discretionary Leave for Victims of Modern Slavery” (“the MSL Policy”) require the Defendant’s decisions on the grant of leave to remain to be made in accordance with Article 14(1)(a) ECAT, which requires the grant of a residence permit to a confirmed victim of modern slavery if their stay in the UK is necessary owing to their personal situation.

2. The statutorily-protected stay in the UK of a confirmed victim of trafficking pending the resolution of an asylum claim made by them which is based on fear of being re-trafficked is capable of constituting a stay which is necessary owing to their personal situation within the meaning of Article 14(1)(a) ECAT.

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