Following the groundbreaking case of PK(Ghana) v Secretary of State for the Home Department  EWCA Civ 98 on victims of modern slavery the Home Office published their operational guidance titled Discretionary leave considerations for victims of modern slavery.
In this post we will explore whether PK (Ghana) left a positive or negative implication on people who claim to be a victim of trafficking/modern slavery.
Brief background on victims of trafficking/modern slavery.
As soon as a person discloses that they are a victim of trafficking/modern slavery they should immediately be referred to the National Referral Mechanism (NRM) by a recognised first responder who in turn forward it to a Competent Authority (the Modern Slavery and Human Trafficking Unit for EEA nationals or the UK Visas and Immigration for non EEA nationals).
The Competent Authority has 5 working days to assess whether there are Reasonable Grounds to believe that the individual is trafficked. Following a positive Reasonable Grounds decision, the person will undergo a 45 day reflection period in order to recover and/or to take an informed decision on cooperating with the Competent Authorities. The Competent Authority is also obliged to make a Conclusive Grounds decision during this period.
Discretionary Leave to Remain may be a possibility for persons who have received a positive Conclusive Grounds decision.
However, a person will not qualify for discretionary leave solely because they have been identified as a victim of modern slavery – there must be reasons based on their individual circumstances to justify a grant of discretionary leave where they do not qualify for other leave such as asylum or humanitarian protection and either:
• leave is necessary owing to personal circumstances or;
• leave is necessary to pursue compensation or;
• victims who are helping police with their enquiries.
The first of these bullet points was explored in more detail in PK (Ghana).
PK(Ghana) v Secretary of State for the Home Department  EWCA Civ 98
This case concerned PK who like most victims of modern slavery/trafficking had a dark past as he suffered greatly in the hands of other people from a very young age. This in turn severely affected his mental well-being in the later stages of his life.
The main challenge was whether SSHD abode by Council of Europe Convention on Action against Trafficking in Human Beings definition/interpretation on Article 14(1)(a) of the Trafficking Convention which states:
‘Article 14 – Residence permit
1. 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.’
This should be read in conjunction with Article 14 of the Explanatory Report to the Council of Europe Convention on Action against Trafficking in Human Beings.
In the Home Office’s old 2013 guidance on Victims of Human Trafficking it was contended that a victim of trafficking/modern slavery will only satisfy the definition if their personal circumstances are ‘compelling’ or ‘so compelling.’
As a result Lord Justice Hickinbottom stated:
40. ‘…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 SSHD put forward that there were no restrictions on the concept of ‘necessary’ in Article 14(1)(a) and that the Trafficking Convention gave them (as the Competent Authority) the ‘discretion’ which was ‘both broad and untrammelled or open-ended.’
However, Lord Justice Hickinbottom did not agree that Article 14(1)(a) was intended to give the SSHD an open-ended discretion. He stated ‘if it were an open-ended discretion, Article 14(1)(a) would be otiose.’
He further regarding the definition of ‘necessary’ in Article 14(1)(a) stated :
44.’ “Necessary”, in this context, means required to achieve a desired purpose, effect or result. In Article 14(1)(b), the purpose for which it is necessary for a person to stay in the country is express: the competent authority has to consider that the person staying in the country “is necessary for the purpose of their cooperation with the competent authorities in investigation or criminal proceedings”. In Article 14(1)(a), the purpose is not express: but the provision is deep within the Trafficking Convention which (as Miss Bretherton rightly accepted) must be construed purposively. Thus, “necessary” in Article 14(1)(a) has to be seen through the prism of the objectives of the Convention: and the competent authority has to consider whether the person staying in the country is necessary in the light of, and with a view to achieving, those objectives.’
It was further agreed that ‘compelling’ bore too high a threshold.
54. ‘Like “necessary”, something cannot be “compelling” in this context without reference, express or implied, to the object it tends to pursue Even if the Secretary of State’s policy guidance identified that object – which, as I have indicated, it singularly fails to do – and even though “compelling” does not necessarily have the etymological implication of a particularly high threshold, it is often used in the legal sense to convey that the relevant threshold is high, and will be only exceptionally and rarely met.
… Thus, “compelling” has a particular connotation in the immigration context, involving a particularly high threshold.’
56. ‘…However, as I have described, the Convention is intended to give victims of trafficking particular protection and assistance; and Article 14(1)(a) merely requires consideration of whether it is necessary for the victim to remain in a country because of his or her personal circumstances, without the higher threshold implicit in the word “compelling”.’
For the above reasons it was agreed that the SSHD’s policy guidance was unlawful.
As a result, in their current operational guidance which was published on 21.02.2018, the Home Office have amended their definition to adopt PK (Ghana):
Leave is necessary owing to personal circumstances
When deciding whether a grant of leave is necessary under this criterion an individualised human rights and children safeguarding legislation – based approach should be adopted. The aim should be to protect and assist the victim and to safeguard their human rights. In seeking to do so decision makers should primarily:
- assess whether a grant of leave to a recognised victim is necessary for the UK to meet its objective under the Trafficking Convention – to provide protection and assistance to that victim, owing to their personal situation.
Most victims of modern slavery/trafficking also claim asylum/humanitarian protection. When they do, they will automatically be considered for discretionary leave on the basis of their trafficking/slavery if they are refused asylum.
Initially, 6 months discretionary leave to remain (DLR) is granted so that the individual can be regularly reviewed. However, once their DLR expires, they can apply for an extension to their leave. The maximum period of leave that can be granted is 30 months.