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Amanda Weston QC and Miranda Butler succeed in challenge to Home Office policy excluding potential victims of trafficking from leave to remain and a right to work

Thursday 3 December 2020

Amanda Weston QC and Miranda Butler of the Garden Court Public Law Team are instructed by Zofia Duszynska and Shilpa Caute of Duncan Lewis Solicitors.

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The High Court has today handed down judgment in the case of EOG v Secretary of State for the Home Department [2020] EWHC 3310 (Admin). In a decision of importance to all potential victims of trafficking within the National Referral Mechanism (“NRM”), Mostyn J held that the Home Office’s policy that victims of trafficking should not be considered for discretionary leave or given a right to work whilst within the NRM is unlawful as it fails to implement the Home Office’s obligations under Article 10(2) of the European Convention Against Trafficking. 

The judgment contains a sharp rebuke of the very significant delays in decision-making within the NRM concluding that, since the unsuccessful challenge to systemic delay within the NRM in R (O) v SSHD [2019] EWHC 148 (Admin), “things have gone from bad to worse”, pointing out that the current backlog of cases will take between two to three years to conclude. 

Amanda Weston QC and Miranda Butler acted for EOG, a victim of sexual exploitation within the UK who has been praised by the Metropolitan Police for the crucial role she has played in assisting with the investigation into her traffickers. At the time she was referred into the NRM EOG held leave to remain and a right to work, which allowed her to work for an organisation assisting other victims of trafficking. Because of the very lengthy delays in processing her claim, EOG’s leave lapsed whilst she was within the NRM and she lost her right to work. 

EOG and her legal team challenged the Home Office’s policy, which it was argued prevented caseworkers from granting discretionary leave to remain whilst within the NRM or considering whether to allow victims a right to work. Substantial evidence was adduced of the significant harm to victims’ recovery caused by the loss of leave to remain and a right to work whilst within the NRM.

The Court held that:

“There is an unlawful lacuna in the existing policy inasmuch as it fails to implement the obligation in Article 10.2 formally to protect persons in receipt of a positive reasonable grounds decision from removal from this country’s national territory pending the conclusion of the process. Suffering such a person to remain as an overstayer, or as an illegal immigrant, does not fulfil the obligation. The defendant must formulate a policy that grants such persons interim discretionary leave on such terms and conditions as are appropriate both to their existing leave positions and to the likely delay that they will face. It is not for me to prescribe what such terms and conditions should be. I agree with Mr Tam QC that constitutionally that is a matter reserved to the defendant. However, the terms and conditions must obviously be lawful and this would mean that someone in the position of the claimant, who has a time-limited right to work, should not have the arbitrary adverse consequence of a removal of that right meted out to her simply by virtue of the delays that she is likely to face.”

As a result of this challenge, the Home Office will be obliged to issue a new policy which sets out the circumstances in which potential victims of trafficking within the NRM may be given interim discretionary leave. It is likely that victims of trafficking who have a right to work at the point at which they receive a reasonable grounds decision should not lose this simply as a matter of delays in the decision-making process. 

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