R (KTT) v Secretary of State for the Home Department, 12 October 2021, is likely to have far-reaching implications. Linden J undertook a judicial review of the home secretary’s failure to grant discretionary ‘modern slavery’ leave to remain (MSL) to a Vietnamese citizen who was trafficked to the UK for the purpose of forced prostitution and cannabis cultivation. Despite conclusively recognising the claimant as a victim of human trafficking, the home secretary refused her application for MSL. The claimant’s asylum and human rights claim, which focused on her fear of re-trafficking, remained to be determined.
The case focused on article 14(1)(a) of the(ECAT), whereby a residence permit (in this case, MSL) shall be issued if a trafficking victim’s ‘stay is necessary owing to their personal situation’. Linden J firmly rejected the home secretary’s attempt to unsettle an established line of case law confirming that provisions of ECAT, though not directly effective, are justiciable when implemented by policy. The MSL policy (Discretionary leave considerations for victims of modern slavery, version 2, Home Office, September 2018) sought to give domestic effect to the article 14 obligation; therefore, a failure to comply with article 14 could constitute a public law error.
Linden J held that a residence permit ‘in order to pursue a claim for asylum based on the fear of being re-trafficked may be necessary owing to the victim’s personal situation’ (para 93, emphasis in original). The MSL policy failed to acknowledge that an asylum claim may constitute a need to stay in the UK in accordance with article 14. The policy was therefore unlawful and the home secretary must now ‘consider whether the fact that the claimant had made an asylum/protection claim based on the fear of re-trafficking, and therefore needed to stay in this country to pursue that claim, was a basis for granting MSL’ (para 112). This is significant because many trafficking victims may now benefit from the security and entitlements offered by leave to remain that they had been routinely denied.