Social Welfare Update: Lacuna in leave to remain policy arising from delays in identification of victims of trafficking

Friday 26 February 2021

Amanda Weston KC

Amanda Weston QC and Miranda Butler of Garden Court Chambers represented the Claimant, instructed by Duncan Lewis Solicitors.

This blog piece was written by Miranda Butler.

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In EOG v SSHD [2020] EWHC 3310 (Admin) the Court considered a challenge to the Home Office’s policy not to grant victims of trafficking a right to work or leave to remain whilst they are within the National Referral Mechanism. Mostyn J found in the Claimant’s favour and declared the Home Office’s policy unlawful as it failed to implement the obligation in Article 10.2 of ECAT to protect potential victims of trafficking from removal pending the conclusion of the process. He held that “[s]uffering such persons to remain as overstayers, or as illegal immigrants, does not fulfil the obligation” (§48). He left the issue of how the policy should be reformulated to the Home Office to determine. As regards the right to work, the Judge held 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” (§48).

The Judge was highly critical of the extremely long delays in decision-making within the NRM. EOG herself had been waiting over 800 days for a final decision. The judgment describes a “remorseless increase” in delays, which have “gone from bad to worse” despite the Home Office’s policy stating that decisions should be made “as soon as possible”. Mostyn J reviewed the Home Office’s published statistics and identified that the present backlog of conclusive grounds decisions would take two to three years to clear. This finding is particularly stark in light of the assurances that delays were improving given to the High Court in R (O and H) v SSHD [2019] EWHC 148 (Admin). Those assurances were relied on by the Court in dismissing that challenge, which argued that the delays were systemically unlawful. 

The Home Office has not yet amended its statutory guidance under s. 49 of the Modern Slavery Act in line with this judgment and has sought permission to appeal to the Court of Appeal. 

The judgment is available here.

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