High Court Rules in Favor of Victim of Modern Slavery in Landmark Decision Against Home Secretary

Citation: [2024] EWHC 81 (Admin)
Judgment on

Introduction

In the case of XY v The Secretary of State for the Home Department, the High Court of Justice dealt with issues of public law concerning the interpretation and implementation of policy, notably in relation to victims of modern slavery requesting leave to remain in the UK. This case scrutinizes the obligations of the Secretary of State under the Council of Europe Convention on Action against Trafficking in Human Beings 2005 (ECAT), and the duty of candour in judicial review, as well as the approach to privilege and relevance regarding withheld material.

Key Facts

The claimant, an Albanian national and a recognized victim of modern slavery, challenged the Secretary of State’s failure to consider his entitlement to leave to remain under the ECAT policy. The challenge brought to light that there had been an unpublished policy of deferring decisions for certain victims, in contrast to the published policy which was assumed to be in force. This alleged concealment led to accusations of a breach of the rule of law, and specifically, violations of Articles 8 and 14 ECHR.

  1. The Rule of Law and Transparency: The court reiterated the principle that governmental policies must be transparent and consistent with published policies (R (Lumba) v Secretary of State for the Home Department). The Secretary of State is obliged to interpret and implement the published policy as it has been judicially declared unless it is amended or revoked.

  2. The Duty of Candour: The duty of candour in judicial review proceedings mandates that the government disclose relevant policies and practices, especially when those directly affect individuals’ rights. This duty was examined in light of the government’s failure to disclose the operation of an unpublished policy which impacted the claimant’s rights.

  3. Article 8 ECHR - Respect for Private and Family Life: The court considered the impact of the unpublished policy on the claimant’s Article 8 rights. A decision that affects an individual must be communicated to enable legal challenge, aligning with the principles highlighted in R (Anufrijeva) v Secretary of State for the Home Department. The failure to grant leave was found to substantively breach Article 8.

  4. Article 14 ECHR - Prohibition of Discrimination: The court also found a breach of Article 14 in conjunction with Articles 8 and Article 1 of Protocol 1, citing the case of R (JP) v Secretary of State for the Home Department. Victims of modern slavery who also claimed asylum were not treated equitably compared to those not claiming asylum.

Outcomes

The court ruled that the claimant’s challenge succeeded on multiple grounds:

  1. The unpublished policy constituted an unlawful breach of the rule of law.
  2. There was a substantive breach of Article 8 ECHR from 8 December 2021 to 18 January 2023, due to the failure to grant the claimant leave to remain.
  3. The defendant’s conduct amounted to a breach of the Article 8 procedural component.
  4. There was a breach of Article 14 ECHR, as the differential treatment of the claimant was not objectively justified.

Conclusion

In conclusion, XY v The Secretary of State for the Home Department serves as a significant reminder of the principles that underpin public law, particularly the transparency of policy, the duty of candour, and the importance of communication of decisions to affected individuals. The decision emphasizes that individuals are entitled to rely on published government policies and that any departure from such policies, especially those that are not transparently communicated, can result in a violation of the European Convention on Human Rights. The case also underscores the judiciary’s preventative role against the executive’s dilution of the rule of law principles.

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