Victims Of Modern Slavery Now Have Increased Leave To Remain Rights Thanks To A Court Of Appeal Ruling
A 40-year-old victim of modern slavery has been granted leave to remain in the UK by the Court of Appeal. This could lead to more victims being granted the right to remain in the UK.
Lord Justice Hickinbottom, Lord Justice Singh, and Lord Justice Patten concluded the Home Office’s decision to remove the victim (who cannot be named) was a breach of the government's obligations under the Council of Europe's Convention on Human Trafficking.
The appellant’s challenge was based on the Home Secretary’s interpretation of part of the Council of Europe’s convention on action against trafficking. The judges found that part of the Home Secretary’s guidance failed to reflect the obligations imposed on the UK government by the convention.
The legal crux of the case is that according to Home Office guidance, one basis for granting a victim of trafficking leave to remain is if their personal circumstances are “compelling”. However, the convention simply states that a victim can be granted leave to remain if their stay is “necessary owing to their personal situation”. The best Immigration lawyers argued that the Home Office guidance created a more onerous legal test. The Court of Appeal agreed.
A tragic example of modern slavery
Slavery has been a stain on humanity from the beginning of time. In her article, Slavery in Late Prehistoric Europe: Recovering Evidence For Social Structure In Iron Age Society, Bettina Arnold, from the Department of Anthropology at Harvard University illustrates there is evidence of unfree populations in Iron Age society. We all know the ancient Greeks, Romans, Egyptians and Vikings have slaves. Slavery in North America was only abolished in 1865 following the Civil War. But contrary to popular belief, slavery is still a scourge in many societies, and occurs even in Britain, in some of the wealthiest homes and businesses.
The victim of this recent case was originally from Ghana. He was sold into slavery at just three years old following his mother’s death. In 2003, when he was 25, he was trafficked into the UK and forced to work in a warehouse for up to 15 hours per day. His passport was removed, and he was subjected to mental and verbal abuse and given limited amounts of food.
After escaping from his traffickers in Luton, the victim applied for leave to remain in the UK. Although the Home Office accepted the man’s account of events, it ruled he had to return to Ghana.
His Immigration lawyers challenged the Secretary of State’s decision by way of judicial review to give him the best chance of being able to remain in the UK.
The Council of Europe's Convention on Human Trafficking and other international and domestic protection against modern slavery
The Council of Europe Convention on Action against Trafficking in Human Beings (the Convention) was adopted by the Committee of Ministers of the Council of Europe on 3rd May 2005, following a series of other initiatives by the Council of Europe in the field of combating trafficking in human beings.
The Convention encompasses all forms of trafficking, including that which is linked to organised crime and applies to men, women and children. The forms of exploitation covered by the Convention are, at a minimum, sexual exploitation, forced labour or services, slavery, or practices similar to slavery, servitude and the removal of organs.
A series of rights are granted to the victims of human trafficking under the Convention, including the right to be identified as a victim, to be protected and assisted, to be given a recovery and reflection period of at least 30 days, to be granted a renewable residence permit, and to receive compensation for the damages suffered.
Article 14 of the Convention states:
Article 14 – Residence Permit
Each Party shall issue a renewable residence permit to victims, in one or other of the two following situations or in both:
a) the competent authority considers that their stay is necessary owing to their personal situation;
b) the competent authority considers that their stay is necessary for the purpose of their cooperation with the competent authorities in investigation or criminal proceedings.
In addition, Article 4 of the European Convention on Human Rights (“the ECHR”) provides that no one shall be held in slavery or servitude, and no one shall be required to perform forced or compulsory labour.
The Modern Slavery Act came into force in 2015. According to Amy Weatherburn, in her article, Using an integrated Human Rights-based approach to address modern slavery: the UK experience, E.H.R.L.R. 2016, 2, 184-194, the Act is aimed at increasing prosecution rates “through better investigation and identification of victims” by outlining two distinct offences. Section 1(1) of the Modern Slavery Act 2015 prohibits slavery, servitude and forced or compulsory labour and s.2 criminalises all forms of human trafficking.
In giving his judgment, the Court of Appeal stated that the grant of discretionary leave is the equivalent of “issuing a renewable residence permit” as provided by the Convention.
The judgment went on to say:
“The only issue is whether the compelling personal circumstances criterion properly reflects the requirement in Article 14(1)(a) that the individual’s stay in the United Kingdom is “necessary owing to their personal situation” (emphasis added).
The Secretary of State, through Miss Bretherton, contends that it does. Miss Bretherton submitted that, in Article 14(1)(a), there are no restrictions upon the concept of “necessary”, and thus, the Convention gives the Secretary of State as competent authority discretion which is both broad and untrammelled or open-ended. That is underscored by the fact that Article 14(1)(a) refers, not to an absolute requirement, but only that the competent authority “considers that their stay is necessary…”, a matter that Picken J found to be of some importance (see paragraph 36 above). In the exercise of that discretion, the Secretary of State is entitled to have a policy that the discretion will only be exercised in favour of the victim of trafficking if there are compelling personal circumstances in his or her case.
However, I cannot accept the proposition that Article 14(1)(a) was intended to (or, construed objectively, does) give the Secretary of State an open-ended discretion.”
The court held the reference in Article.14(1)(a) to the question of whether the competent authority "considers" that the victim's stay was necessary did not mean that it was left to each State to decide the criteria that should be applied. It simply meant that the competent authority had to assess whether the criteria were met in each case. Article 14(1)(a) required the identification of a person’s relevant circumstances and then an assessment by the competent authority of whether, because of those circumstances and in line with the objectives of the Convention, it was necessary to allow that person to remain in the UK.
The Court of Appeal subsequently quashed the Secretary of State’s decision to deny the victim leave to remain in the UK.
Concluding comments
Human trafficking and modern slavery affect millions of people throughout the world. The Court of Appeal’s decision is a stark reminder to the Secretary of State that attempts to control Immigration should not be made at the expense of the world’s most vulnerable and exploited citizens, who require and deserve safety and protection after suffering years of abuse and horror.
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