In R (on the application of SV) v Secretary of State for the Home Department (ECAT: lawfulness of policy guidance) [2022] UKUT 39 (IAC), the Upper Tribunal considered the lawfulness of the Secretary of State for the Home Department's policy guidance titled Discretionary Leave Considerations for Victims of Modern Slavery (version 4.0). There is now a further iteration of this guidance, (version 5.0).

The Decision Challenged in R (on the application of SV)

These judicial review proceedings were brought against a decision by the Secretary of State to grant, initially 12, and subsequently 30 months' discretionary leave to remain to a person recognised as a victim of trafficking and diagnosed with complex post-traumatic stress disorder, in order to allow her to access treatment in the UK. The earlier decision had been responded to on the applicant's behalf by way of a cover letter and medical report, stating that the 12 months were insufficient and that "unlimited leave to remain would make the best clinical sense".

Proceedings before the Upper Tribunal in R (on the application of SV)

The grounds of challenge were broadly framed on the basis that the decisions had been made in accordance with the Secretary of State's aforementioned policy, which was unlawful on account of failing to properly reflect, or give effect to, the European Convention against Trafficking in Human Beings 2005 ("ECAT"). ECAT is an international treaty which binds the UK as a matter of international law, having been entered into by the member States of the Council of Europe including the UK, but which has not been incorporated by legislation into domestic law.

The first issue the Upper Tribunal had to address was that of the justiciability of the challenge to the lawfulness of the policy with reference to ECAT. The Secretary of State's position was that any previous concessions as to the fact that the guidance was intended to, and purported to, give effect to ECAT could not be relied upon, in view of the Supreme Court's judgment in R (SC & Ors) v Secretary of State for Work and Pensions & Ors [2021] UKSC 26. In that judgment, it was held that it was not appropriate to seek to apply an unincorporated treaty in reaching a decision as to whether the United Kingdom had complied with its obligations under the ECHR, as unincorporated treaties do not form part of the law of the UK.

Nonetheless, the Upper Tribunal held that the matter was justiciable and that a court or tribunal could not refuse to examine the lawfulness of the policy despite ECAT not being part of domestic law. The reason for this was that the Secretary of State had decided to give effect to ECAT by means of policy. The Upper Tribunal reached this conclusion by following the findings of Linden J in R (KTT) v Secretary of State for the Home Department [2021] EWHC 2722 (Admin), as, albeit not binding to the Upper Tribunal, there was no powerful reason to depart from them. Upon analysing the wording of the policy, Linden J had determined that it "overwhelmingly demonstrates a commitment to take decisions as to discretionary leave in accordance with ECAT albeit, for reasons which I will explain, the requirements of Article 14 have not been fully appreciated".

The Upper Tribunal recognised that, notwithstanding the UK's international obligations arising from ECAT, the Secretary of State was not bound to have a policy to give effect to it. Further, that she is, in theory, not prevented from adopting a policy that she will not seek to give effect to ECAT, or that she will in relation to some provisions, but not others. However, the Upper Tribunal agreed with Linden J that, as did its predecessors, version 4.0 of the policy was intended to guide the Secretary of State's caseworkers to make decisions which are in accordance with ECAT.

The Upper Tribunal concluded that, "[d]espite not being incorporated into domestic law, ECAT is not itself a policy of the respondent, whose terms can be changed or abrogated by her. ECAT remains an international set of obligations. Accordingly, when seeking to establish the appropriate public law mechanism for assessing the lawfulness of the respondent's policy guidance, it is essential to recognise that the respondent has chosen to give ECAT normative effect, with the policy guidance being a set of instructions to her caseworkers on how to make decisions that give effect to ECAT."

The Upper Tribunal considered that this was analogous to the position in the third category of the three categories set out in A and BF (Eritrea), where a policy may be found to be unlawful: "Where the authority, even though not under a duty to issue a policy, decides to promulgate one and in doing so purports in the policy to provide a full account of the legal position but fails to achieve that, either because of a specific misstatement of the law or because of an omission which has the effect that, read as a whole, the policy presents a misleading picture of the true legal position."

In view of this finding, the Upper Tribunal considered that the lawfulness of the policy should be determined by reference to the test approved by the Supreme Court inR (on the application of A) v Secretary of State for the Home Department [2021] UKSC 37 and R (on the application of BF (Eritrea)) v Secretary of State for the Home Department [2021] UKSC 38, which have been covered in our previous articles, here and here, respectively. The relevant question is whether the policy can be operated in a lawful way, or whether it imposes requirements which mean that a material and identifiable number of cases will be dealt with in an unlawful way.

The Upper Tribunal proceeded to consider this question and found that there was no incompatibility of terminology between the policy guidance and ECAT in this instance. Further, it was stressed that the challenge did not concern whether a residence permit should be granted, but the length of the residence permit. ECAT is silent on this matter, other than that the residence permit must be "renewable". The Upper Tribunal, thus, found that signatory States have a significant measure of discretion in determining the duration of such permits, which makes it difficult to conclude that the wording of the policy will lead to a material and identifiable number of cases being dealt in a way that is incompatible with ECAT. It was held that there was no additional threshold for being granted further leave on renewal, other than continuing to meet the relevant criteria for being granted discretionary leave under the policy. The requirement for a good reason in order to grant leave for a period exceeding 30 months did not alter the test of whether that is "necessary", but it simply required a careful examination of the relevant circumstances. Similarly, the Upper Tribunal found that the guidance was not incompatible with ECAT in requiring the parent of children granted extended leave under the policy to demonstrate factors in their own right to warrant the grant of a longer period of leave.

As such, the Upper Tribunal rejected the grounds of challenge and found that the policy guidance was not unlawful in this regard. A further "reasons" challenge against the decision to grant 30 months' discretionary leave to remain, rather than ILR, was rejected. It had not been contended that only the grant of indefinite leave to remain constituted what was "necessary" owing to the applicant's "personal situation". Consequently, it was found that the Secretary of State was not required to engage with the view that indefinite leave to remain would make the best clinical sense.

Comment on the UT's Assessment of the Lawfulness of Home Office Guidance on Victims of Modern Slavery

Whilst the challenge ultimately failed on those grounds, this case remains of great importance. It was confirmed that the lawfulness of a policy guidance can be judicially examined even when it provides advice about a set of international obligations that do not form part of domestic law, but to which the authority that promulgated the guidance has chosen to give normative effect. Of course, the Secretary of State may lawfully decide in the future to amend its policy to consciously depart from ECAT, but that will result in breaching of the UK's international obligations arising from the treaty and incurring political cost domestically.

This judgment is reminiscent to that in Akinsanya v Secretary of State for the Home Department [2022] EWCA Civ 37, despite the different nature of the impugned subject matters, a policy guidance, in the former, and a provision of (Appendix EU to) the Immigration Rules, in the latter, in that the means for determining the lawfulness of each depends upon their intended purpose (paragraph 58 of SV and, although obiter, paragraph 57 of Akinsanya). Even if the Secretary of State is not required to follow provisions that do not form part of domestic law, should she choose to give effect to them by way of policy, it would be unlawful and, thus, judicially reviewable, for her to fail to act in a way that is compatible with them.

Originally published 28 March 2022

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