GVA, R (on the application of) v Secretary of State for the Home Department
[2023] EWHC 2838 (Admin)
XY v The Secretary Of State For The Home Department
23 January 2024
[2024] EWHC 81 (Admin)
High Court
The government had a secret rule to delay decisions for modern slavery victims who also sought asylum. A court ruled this was illegal and unfair, violating the victim's rights. The court also criticized the government for hiding information and not being open about what it was doing.
Key Facts
- •The claimant, an Albanian national, was a victim of modern slavery and sought leave to remain in the UK.
- •The Home Secretary's policy on discretionary leave for modern slavery victims referenced Article 14(1)(a) of ECAT.
- •Linden J in R (KTT) interpreted the policy to mean a victim's stay, not the permit itself, needed to be necessary.
- •The Home Secretary paused decisions on leave for asylum-seeking victims pending appeal of KTT, creating an unpublished policy.
- •The claimant argued this unpublished policy was unlawful, breaching his Article 8 and 14 ECHR rights.
- •The Home Secretary granted the claimant leave during the judicial review proceedings.
Legal Principles
An unpublished policy must not be inconsistent with any published policy.
R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245
A decision-maker must follow published policy unless there are good reasons not to.
R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245
The rule of law requires transparent executive statements on how statutory criteria will be exercised.
R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245
Adverse administrative decisions must be communicated to the individual before having legal effect.
R(Anufrijeva) v Secretary of State for the Home Department [2004] 1 AC 604
If Article 8(1) ECHR is engaged, a decision not in accordance with the law breaches Article 8(2).
Malcolm v Secretary of State for Justice [2011] EWCA Civ 1538
In Article 14 ECHR claims, the burden is on the respondent to justify any difference in treatment.
JP v Secretary of State for the Home Department [2020] 1 WLR 918
Outcomes
The judicial review succeeded.
The Home Secretary's unpublished policy of pausing decisions, while maintaining a published policy to the contrary, was unlawful and breached the claimant's Article 8 and 14 ECHR rights.
Substantive breach of Article 8 ECHR found.
The unlawful policy caused significant distress and uncertainty, impacting the claimant's ability to work, access benefits, and generally impacting his life in the UK.
Procedural breach of Article 8 ECHR found.
The secret policy impaired the claimant's ability to challenge the decision-making process via judicial review.
Breach of Article 14 ECHR found.
The claimant was treated differently from other modern slavery victims solely because he was also an asylum seeker, resulting from the unlawful policy.
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