Court of Appeal says exclusion of those with deportation orders from trafficking concession is lawful

The Home Secretary has succeeded in an appeal where she argued that those with deportation orders or proceedings were lawfully excluded from a concession allowing certain victims of trafficking to be considered for discretionary leave under the more favourable provisions in place before 30 January 2023. The case is Secretary of State for the Home Department v S [2025] EWCA Civ 188 and the AIRE Centre intervened.

Legal background

I am going to start this one with the concluding thoughts of Lord Justice Peter Jackson in this decision, where he noted that the Supreme Court has previously “expressed the view that the structure of both primary and secondary legislation in this field has reached such a degree of complexity that there is an urgent need to make the law and procedure clear and comprehensible. These appeals offer further striking evidence of that urgent need.” Consider that your health warning, but I will do the best I can.

I have written a longer explainer in an earlier post, but in brief, the affected group (“the KTT cohort”) are those who were confirmed as a victim of trafficking before 30 January 2023 and who, at the date of their trafficking decision, had a pending claim for asylum that was based on a fear of re-trafficking, even if just in part. In R (KTT) v Secretary of State for the Home Department [2021] EWHC 2722 (Admin) the High Court concluded that this group was entitled to a grant of discretionary leave to remain as their stay in the UK is necessary due to their personal situation (i.e. the need to pursue their asylum claim).

The Home Office secretly decided not to grant leave, even after the Court of Appeal refused to grant a stay on the High Court’s decision pending a final outcome of the appeal, and instead paused all the KTT cohort cases. The pause was actually much wider than this, as all cases with a pending asylum claim were put on hold, regardless of whether or not re-trafficking had been raised. On 28 October 2022 the Supreme Court refused to grant the Home Secretary permission to appeal.

In January last year, in XY v Secretary of State for the Home Department [2024] EWHC 81 (Admin) the High Court unsurprisingly found that the operation of this secret policy was unlawful.

On 30 January 2023 section 65 of the Nationality and Borders Act 2022 was brought into force. Section 65(2)(a) was designed to undo the effect of KTT by removing the provision for a grant of leave owing to personal circumstances (as expressly provided for at article 14(1)(a) of the Council of Europe Convention on Action against Trafficking in Human Beings 2005, “ECAT”).

Transitional provisions in the discretionary leave policy provided that:

Under this policy, those individuals who were eligible for consideration of leave to remain under the KTT judgement prior to 30 January 2023, will not have their applications for DL determined under Temporary Permission to Stay considerations for Victims of Human Trafficking or Slavery. Instead, where:

• a competent authority made a positive conclusive grounds decision prior to 30 January 2023; and

• the individual had prior to 30 January 2023 articulated an asylum claim or further submissions which were trafficking-related as set out above; and

• the individual’s asylum claim or further submissions have at the present date not yet been finally determined (this means that they are still awaiting a decision or still have in-country appeal rights to exercise)

you must consider granting DL. DL will normally be granted in these circumstances. 

This meant that the KTT cohort who had been subject to the unlawful pause would have their leave requests considered under the more generous, pre-30 January 2023 provisions which included the “personal circumstances” ground for a grant of leave.

Factual background

VLT is a Vietnamese national who was trafficked to the UK on three separate occasions, in 2009, 2015 and 2018. He was forced to grow cannabis to repay a debt and in 2012 was convicted of conspiracy to cultivate cannabis and was sentenced to eight months’ imprisonment. A deportation order was made in January 2013.

He was referred to the National Referral Mechanism on 29 May 2018 for a determination of whether he was a victim of trafficking. On 1 June 2018 VLT claimed asylum based on his fear of being re-trafficked if returned to Vietnam. A positive reasonable grounds (first stage) trafficking decision was made on 27 June 2018 and a positive conclusive grounds (second stage) decision was made on 23 September 2022, meaning that the Home Office accepted that he was a victim of trafficking.

Following that decision, VLT applied for discretionary leave on 10 November 2022 and the refusal of 12 June 2023 was made under the ‘Temporary Permission to Stay Considerations for Victims of Human Trafficking and Slavery’ guidance published on 8 June 2023. VLT argued that his application should have been considered under the discretionary leave guidance instead, as this made specific provision for those who had received a positive conclusive grounds decision and had an outstanding asylum claim before 30 January 2023.

VLT’s asylum claim was refused on 15 August 2023 and the decision stated that although his prison sentence was less than 12 months, the Home Secretary considered his deportation to be conducive to the public good. VLT appealed the asylum refusal and this was allowed on 6 August 2024.

Before this, VLT had applied for judicial review of the Home Secretary’s decision to refuse leave to remain as a victim of trafficking under the rules and under the discretionary leave policy. The Upper Tribunal quashed the refusal and made a declaration that the relevant part of the discretionary leave policy was unlawful. The Home Secretary was ordered to grant discretionary leave to VLT within 28 days.

S was brought to the UK when he was nine or ten years old, for the purposes of domestic servitude and sexual exploitation. He escaped but was traumatised and later had several convictions for burglary and drug offences, the first when he was still a child. A deportation order was made on 8 March 2012 and his appeal unsuccessful. The Home Secretary tried to remove him to Nigeria but this failed as it was not accepted that he was Nigerian by the authorities there. He was accepted to be a victim of trafficking on 28 November 2022.

S was refused leave to remain on 20 March 2023 under Appendix ‘Temporary Permission to Stay for Victims of Human Trafficking or Slavery’ as the Home Secretary considered that he could receive treatment in his home country. Discretionary leave was also refused. S applied for judicial review of the refusal and this was allowed by the Upper Tribunal.

The Court of Appeal

The distinction in this case from the rest of the KTT cohort is that both VLT and S have criminal convictions and deportation orders. The discretionary leave policy expressly excludes those with a deportation order, as set out in the Court of Appeal’s decision [at 66]:

The very next heading is ‘When not to consider DL’. The text then lists, in six bullet points, the circumstances when ‘DL does not need to be considered on these grounds’. The final two bullet points are ‘falls to be refused DL under Part 9 of [the Rules] (general grounds of refusal’), and ‘is subject to deportation proceedings (see Deportation cases section)’. Under the heading ‘Deportation cases’ the [discretionary leave policy] refers to cases in which a person is either subject to ‘an extant deportation order’ or where a decision to deport has been made and ‘deportation continues to be pursued’. It continues, ‘they must not be considered under the DL policy for modern slavery (including human trafficking) pre-30 January 2023. Instead they will be considered under [the VTSP]’.

In VLT’s case in the Upper Tribunal it was held that as article 14(1)(a) ECAT did not allow for an exception on the ground that a person was subject to deportation and so this part of the policy was unlawful.

The Court of Appeal did not agree. The court considered that it had two questions to answer:

1. Is the UT’s interpretation of the transitional provisions of the [discretionary leave policy] correct?

2. If not, are S’s article 4 rights, read with article 14, breached by the application to his case of the [discretionary leave policy] (properly construed)?

On the first question, the Court of Appeal considered that a “clear purpose of the transitional provisions” was that those in the KTT cohort who were subject to a deportation order or deportation proceedings would not benefit from the concession. The court said that exclusion from the concession reflected a policy choice by the Home Secretary and that was not irrational, or otherwise unlawful and that it was still possible to request leave be granted on other grounds.

On the second question, the discrimination argument fell at an early hurdle as the court did not accept that the members of the KTT cohort who are the subject of the ‘deportation carve-out’ are in an analogous position to those who do benefit from the concession. In relation to justification, the court referred to the deportation scheme and said that it “shows that Parliament has given great weight, subject to such safeguards as it considers appropriate, to the deportation of foreign criminals”.

Conclusion

VLT now appears to have refugee status and so will presumably not be taking the case any further. But what of S? He has lived in the UK for almost 40 years, it has been accepted that he has been trafficked here for the purposes of domestic servitude and sexual exploitation, experiences that seem likely to have influenced his later offending. Nigeria have already refused to accept him. It is difficult to understand what the Home Office expects to happen with his case, although presumably they would be content to just leave him in limbo permanently.

Unless this case proceeds to the Supreme Court, I think this may now be the end of the KTT cases.