The Secretary of State for the Home Department v TC
[2023] UKUT 164 (IAC)
VLT (Vietnam), R (on the application of) v Secretary of State for the Home Department
8 February 2024
[2024] UKUT 67 (IAC)
Upper Tribunal
The government had a policy helping trafficking victims stay in the UK while their asylum cases were decided. However, it had a loophole that stopped this help for victims facing deportation. A court said this loophole was illegal because it went against international and UK laws protecting trafficking victims.
Key Facts
- •The applicant, VLT (Vietnam), is an asylum seeker and confirmed victim of trafficking with a deportation order.
- •VLT had a positive conclusive grounds decision (CGD) and a pending asylum claim based on fear of re-trafficking before January 30, 2023.
- •The Home Office refused VLT temporary permission to stay under the wrong policy.
- •The case concerns the interpretation of Discretionary Leave policy (DLP) version 10 and the Temporary Permission to Stay policy (VTSP) version 3.0, particularly their application to victims of trafficking subject to deportation.
Legal Principles
Article 14(1)(a) ECAT requires a renewable residence permit for trafficking victims if their stay is necessary due to their personal situation.
Council of Europe Convention on Action against Trafficking in Human Beings (ECAT)
Unincorporated treaties like ECAT don't have direct effect in UK law, but guidance purporting to implement them can be challenged if it fails to do so.
EOG and KTT v SSHD [2022] EWCA Civ 307
Sections 63 and 65 of the Nationality and Borders Act 2022 (NABA) govern leave to remain for trafficking victims, including public order disqualifications.
Nationality and Borders Act 2022
Article 4 ECHR imposes a positive obligation to protect trafficking victims, but this doesn't automatically incorporate Article 14(1)(a) ECAT.
European Convention on Human Rights (ECHR)
Outcomes
The Upper Tribunal found the 'deportation carve-out' in the DLP unlawful.
The carve-out excludes individuals subject to deportation from the transitional provisions intended to implement Article 14(1)(a) ECAT, even if they don't pose a threat to public order. This is incompatible with ECAT and sections 63 and 65 of NABA 2022.
The Tribunal's decision to refuse VLT's application for leave to remain under DLP was unlawful.
The DLP's transitional provisions intended to comply with Article 14(1)(a) ECAT. The applicant met the criteria for consideration under these provisions, but was excluded due to the unlawful deportation carve-out.
Permission to appeal was refused.
There was no arguable error of law in the Tribunal's interpretation of the DLP and its finding that the deportation carve-out was unlawful.
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