EOG & Anor v Secretary of State for the Home Department [2022] EWCA Civ 307 (17 March 2022)

EOG & Anor v Secretary of State for the Home Department [2022] EWCA Civ 307 (17 March 2022)

ECAT does not require the UK to grant leave to remain to potential victims of trafficking during the identification period; the obligation is limited to irremovability and basic assistance. The Secretary of State's policy is not unlawful for failing to grant discretionary leave to potential victims. For confirmed victims, the policy must consider whether their stay is necessary owing to their personal situation, including pending asylum claims, in accordance with Article 14.1(a) ECAT.

Citation
[2022] EWCA Civ 307
Parties
Claimant/respondent: EOG; Claimant/respondent: KTT; Defendant/appellant: Secretary of State for the Home Department; Intervener: The AIRE Centre
Jurisdiction
England and Wales
Judgment Date
17 March 2022
Procedural Posture
Judicial Review / Appeal From High Court to Court of Appeal
Outcome
Appeal allowed in EOG; claim dismissed. Policy not unlawful for failing to grant leave to potential victims. For KTT, policy must comply with Article 14.1(a) ECAT regarding confirmed victims and pending asylum claims.
Legal Topics
Victims of Trafficking, Leave to Remain, Council of Europe Convention on Action Against Trafficking in Human Beings (ecat), Modern Slavery Act 2015, Discretionary Leave Policy, Judicial Review of Government Policy
Immigration Law Human Rights Law Administrative Law Victims of Trafficking Leave to Remain Council of Europe Convention on Action Against Trafficking in Human Beings (ecat) Modern Slavery Act 2015 Discretionary Leave Policy +1 more

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Parties

EOG

Claimant/respondent

KTT

Claimant/respondent

Secretary of State for the Home Department

Defendant/appellant

The AIRE Centre

Intervener

Procedural Posture

Judicial Review / Appeal From High Court to Court of Appeal

Legal Issues

  1. 1 Whether the Secretary of State's policy unlawfully fails to provide for discretionary leave to remain for potential victims of trafficking during the identification period (EOG)
  2. 2 Whether the Secretary of State's policy unlawfully fails to grant leave to remain to confirmed victims of trafficking pending a decision on their asylum claim (KTT)
  3. 3 Whether ECAT obligations are justiciable in domestic courts via government policy

Ratio Decidendi

ECAT does not require the UK to grant leave to remain to potential victims of trafficking during the identification period; the obligation is limited to irremovability and basic assistance. The Secretary of State's policy is not unlawful for failing to grant discretionary leave to potential victims. For confirmed victims, the policy must consider whether their stay is necessary owing to their personal situation, including pending asylum claims, in accordance with Article 14.1(a) ECAT.

Court Disposition

Appeal allowed in EOG; claim dismissed. Policy not unlawful for failing to grant leave to potential victims. For KTT, policy must comply with Article 14.1(a) ECAT regarding confirmed victims and pending asylum claims.

Orders

  • Set aside Mostyn J's order in EOG and dismiss the claim.
  • Declaration in KTT that policy must consider necessity of stay for confirmed victims, including pending asylum claims, in accordance with Article 14.1(a) ECAT.