Discretionary leave to remain – Home Office grants leave for trafficking survivors with a pending asylum claim

By Zhuoqi Li

 

The Home Office has updated its caseworker guidance on Discretionary Leave to Remain. The new version of the guidance has provisions that allow acknowledged victims of trafficking to be granted leave if they have an ongoing asylum claim related to their trafficking.

 

Discretionary leave to remain relates to permission to stay outside of the UK immigration rules. This is often granted on the basis of exceptional or compassionate grounds. From 30 January 2023, based on the requirements in Section 65 of the Nationality and Borders Act 2022, victims of human trafficking, slavery, servitude, and forced and compulsory labour who are conclusively recognised as such by the National Referral Mechanism (NRM) may be eligible for temporary permission to stay.

 

This criterion includes giving the individual the opportunity to cooperate with a public authority during an investigation or criminal proceedings related to the relevant exploitation, helping the individual recover from any physical or psychological harm caused by the relevant exploitation, and offering the individual the opportunity to seek compensation for the relevant exploitation. This route is available throughout the UK.

 

Keep reading to learn more about the changes to the caseworker guidance for discretionary leave to remain.

 

What was the background case for this decision?

 

This implements the Court of Appeal’s findings in EOG & KTT v SSHD [2022] EWCA Civ 307:

“KTT, who is a Vietnamese national, was at the relevant time a confirmed victim of trafficking: that is, she had received a positive conclusive grounds decision. She had also made a claim for asylum based on the risk of being re-trafficked if she were returned to Vietnam. Her complaint is that the policy should have provided for the grant of leave to remain pending a decision on her asylum claim.”

 

In the case EOG & KTT v. SSHD [2022] EWCA Civ 307, referred to as “KTT,” the Court of Appeal held that the Home Office’s handling of requests for Modern Slavery Discretionary Leave did not comply with Article 14 (1)(a) of the ECAT (which the policy was found to commit to implementing). States are required to determine whether the victim’s “stay is necessary owing to their particular situation” under ECAT’s Article 14(1)(a). The court determined that in order to pursue an asylum claim, a confirmed victim of trafficking with an unresolved asylum claim also related to trafficking needs to be given consideration for leave to remain in the UK. The reason for this is that their “stay in the UK is necessary” due to their unique situation as a victim of trafficking.

 

Further clarification on the definition of when an asylum or protection claim is related to trafficking was provided in the Upper Tribunal decision of SSA (Ethiopia) v. Secretary of State for the Home Department [2023]. According to the Upper Tribunal, in order for a person to qualify for leave to remain under the KTT judgement, their pending asylum or protection petition must be “in a major part” based on a fear or risk of being trafficked again.

 

Pre-30 January 2023 modern slavery (including human trafficking) cases

 

But what about modern slavery cases from before 30^th January 2023? Individuals who, prior to January 30, 2023, had both a positive conclusive grounds decision and made an asylum claim or other submissions based in large part on a claim of a well-founded fear of re-trafficking or a real risk of serious harm due to re-trafficking that had not yet been finally determined, were potentially eligible for discretionary leave. This is the case even if their leave applications had been approved under Home Office policies at the time.

 

When the Home Office make a decision on a claim that is related to trafficking (even if that decision may be to reject that element of the claim), it means that the claim is related to a well-founded fear of being trafficked again or the risk of suffering serious harm because of being trafficked again on return.

 

Eligibility of Discretionary Leave

 

Please note that a claim will not be considered trafficking-related and discretionary leave cannot be granted if a person just mentions their past involvement in trafficking incidentally and fails to express any fear or risk of re-trafficking in any portion of their claim.

Discretionary leave will not be considered on these grounds if the individual:

• already has permission to remain in the UK, including permission to apply for Modern Slavery Discretionary Leave
• has had their asylum claim found to be inadmissible under the applicable Immigration Rules
• has had their asylum claim or further submissions rejected, and their right to appeal are exhausted
• received a Modern Slavery Discretionary Leave refusal prior to the KTT judgement
• falls to be refused discretionary leave under Part 9 of the Immigration Rules
• is subject to deportation proceedings

 

Duration of Discretionary Leave

 

Those who are given discretionary leave on this basis should usually be entitled to 12 months leave. Persons are only qualified for discretionary leave under this basis pending the outcome of their application for asylum or other submissions. This implies that their leave must be modified or restricted once the outcome of their asylum requests or other submissions.

 

If the asylum decision results in the granting of protection status, the person’s leave must be varied to become a refugee or receive humanitarian protection leave for applications submitted before June 28, 2022, or permission to remain on a protection route for applications submitted on or after June 28, 2022.

 

When an individual receives a family/private life or discretionary leave but their application for asylum is refused for another reason, their discretionary leave must also be modified.

 

If there are no pending applications and the asylum decision is a refusal with an appeal right outside the country or no appeals right, arrangements must be made for the person’s leave to be restricted. If the appeal rights have been exhausted, curtailment action must be planned if the asylum judgement is a refusal with an in-country right of appeal, or leave to remain must be varied if the appeal is permitted and leave to remain is granted.

 

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