A judge has quashed a Home Office policy that has forced trafficking victims seeking asylum in the UK to wait months before being granted leave to remain in the country.
The High Court yesterday ordered the department to change the way it grants refugees who have been trafficked the right to stay in the UK after concluding the current approach is unlawful because it breaches the European Anti-Trafficking Convention.
Mr Justice Murray said there was “no sufficient objective justification” for a policy introduced in August 2018 that means trafficking victims cannot be given discretionary leave to remain until the Home Office had determined whether they qualify for any other form of leave.
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The policy – known as the scheduling rule – means trafficking victims who have applied for asylum must wait until their application has been either granted or rejected before the Home Office confirms they will be allowed to stay in the country and work.
Refugees who have been trafficked must therefore often wait longer – in some cases several months – to have their status recognised and to be given leave to remain in the UK than non-refugees. They may also receive less financial support while their application is being processed.
In a 35-page judgement on a case brought by two such trafficking victims, Mr Justice Murray said was “no sufficient objective justification for the discriminatory impact of the scheduling rule in its current formulation on asylum-seeking victims relative to non-asylum seeking victims”.
He said the home secretary had “not shown that the blanket nature of the scheduling rule is justified”.
“It may be the case that for certain asylum-seeking victims it is appropriate to defer the decision on [European Anti-Trafficking Convention] leave until after a decision is made on asylum, but it is not clear why a blanket rule to that effect is necessary or desirable,” Murray wrote.
Under the convention, the government has a legal obligation to give people who have been trafficked temporary leave to remain in the UK. This discretionary leave is generally granted for up to 30 months and enables people to work, study and claim mainstream benefits “to facilitate recovery from trafficking and/or to facilitate co-operation with a criminal investigation into trafficking”.
By contrast, asylum is generally granted for five years and is a route to settlement in the UK.
The High Court case brought together two separate cases brought by people who had waited nearly a year for the Home Office to recognise them as victims of trafficking and grant them leave to remain in the UK.
Murray said the policy violated the anti-trafficking convention because it caused such a significant delay to people being granted leave to remain in the UK.
In a second breach of the convention, the High Court judge said the rule meant there was a “material risk” that people would only be able to access reduced financial support “in a significant number of cases… for a considerable period of time”.
After 45 days, the £65-a-week allowance for potential victims of trafficking drops to £37.75 a week – the allowance for asylum seekers – which Murray described as “a level sufficient only to avoid destitution”. It “typically takes several months” for the Home Office to reach an asylum decision, he said
The judge concluded that the effects of the policy are “relatively severe” in some cases, and include the “psychological impact of the prolonged uncertainty suffered by victims as to their immigration status, which... inhibits the ability of many victims to begin proper trauma recovery work”.
One reason that the Home Office gave for the policy during the High Court case was that it required less work for officials. Its lawyers said the “administrative convenience” of having to make only one decision for each trafficking victim, rather than two, was “not at all modest in nature”, according to the judgement.
But Mr Justice Murray said the department provided “no evidence (or even explanation) of administrative difficulties” having arisen before the scheduling rule was introduced.
The Home Office also argued that the policy is good for refugees because if their application is successful, they are granted more rights and greater support than if they are given ECAT leave to remain. But the judge said a “better outcome” would be to make a decision on ECAT leave “as soon as possible… so that, either way, the applicant would know where she or he stands in relation to that issue”.
He ordered: “The provision that ‘All outstanding asylum decisions should be taken before any consideration is given to whether the victim is eligible for discretionary leave’ in the defendant’s policy ‘Discretionary leave considerations for victims of modern slavery (Version 2.0)’ is quashed.”
The Home Office is in the process of reviewing its system of identifying and protecting trafficking victims. The verdict ensures any changes to the system will not include a blanket policy delaying leave decisions in future, although the department will be able to delay individual decisions.
Representing the victims in the case, Ugo Hayter of Deighton Pierce Glynn said: “There was no good reason for the Home Office to delay giving our clients the stability and security they needed to have a chance of recovering from their experiences.
“This judgment should result in changes to the policy that ensure that the many others in our clients’ position will not have to endure the prolonged uncertainty and hardship that the Home Office’s policy has caused them.”
CSW has approached the Home Office for a comment.