Education

Policy on leave to remain for survivors of trafficking continues to cause confusion and distress

Published on July 14, 2024

The process for identifying and supporting survivors of trafficking has been seriously degraded over the past couple of years and in this article I look at the position in relation to grants of leave made to those people who have been identified as survivors of trafficking.

Some recent decisions considering these issues can be found here: Home Office policy on leave to remain for potential trafficking victims found unlawful, The Home Secretary’s unlawful secret policy to withhold leave to remain from victims of modern slavery and Deportation order exclusion in discretionary leave policy for victims of modern slavery found unlawful. There are a range of other challenges to the policy currently underway.

A worsening situation for survivors

In accordance with article 14 of Council of Europe Convention on Action Against Trafficking in Human Beings (ECAT) a person who has been recognised as a survivor of trafficking, i.e has received a positive conclusive grounds decision (the second and final stage of the identification process), is entitled to a renewable residence permit (i.e. a grant of leave) in one, or both, of the following situations:

the competent authority (decision making body) considers that their stay is necessary owing to their personal situation;
the competent authority considers that their stay is necessary for the purpose of their co-operation with the competent authorities in investigation or criminal proceedings.

In the explanatory report to ECAT, it is made clear that an assessment of a survivor’s ‘personal situation’ for the purposes of granting a residence permit should take in “a range of situations, depending on whether it is the victim’s safety, state of health, family situation or some other factor which has to be taken into account”.

However, in recent years the interpretation of ‘personal situation’ in the Home Office’s Modern Slavery Statutory Guidance has moved away from this, getting narrower with every iteration.

On 30th January 2023, the policy was amended in order to reflect section 65 of the Nationality and Borders Act 2022. Now ‘Temporary permission to stay for confirmed victims of human trafficking or slavery‘ (known as VTS leave) will be only granted to survivors of trafficking with a positive conclusive grounds decision in order to:

Assist the person in their recovery from any physical or psychological harm arising from their exploitation. However, if the person can get assistance in their home country, then permission to stay may not be granted.
Enable the person to seek compensation if they are unable to pursue this remotely.
Enable the person to co-operate with authorities in connection with an investigation or criminal proceedings. Again, it must be confirmed that it is necessary for the person to be physically present in the UK to cooperate with the investigation or prosecution.

Each of these reasons to grant leave are now much narrower than in the pre-2023 guidance, but particularly the first which previously stated that leave could be granted where “necessary owing to personal circumstances”. It is difficult to see how this current approach is in line with article 14 of Council of Europe Convention on Action Against Trafficking in Human Beings.

Decrease in number of grants of leave

In Helen Bamber Foundation’s August 2023 report “Leave in Limbo – Survivors of Trafficking with uncertain immigration status” significant concerns were expressed about the number of survivors of trafficking who had been recognised as such by the Home Office but had not been granted any leave to remain to enable them to recover from their traumatic experiences.

A Freedom of Information request confirmed that in 2022, only 214 recognised survivors of trafficking who had been referred into the National Referral Mechanism – the framework designed to identify and protect victims of trafficking and modern slavery – and received a positive conclusive grounds decision were granted Modern Slavery discretionary leave.

Unsurprisingly, new unpublished data from a recent Freedom of Information request shows that since the change in policy in January 2023 there has been a stark decrease in the number of grants. In 2023 almost 13,000 non-UK nationals were referred to the National Referral Mechanism as potential victims of trafficking.

Of those, 3,139 adults were confirmed as victims of trafficking but only 113 recognised adult victims of trafficking received a grant of VTS leave to assist with their recovery. Fewer than 10 people received a grant of leave so that they could assist the authorities in prosecuting their traffickers. This is around half of the grants of leave made in 2022 under the previous policy.

Grants of leave for short periods of time do not assist recovery

The few survivors who were granted leave to assist their recovery rarely received it for a period that fails to reflect the long-term nature of recovery and the need for stability to enable them to meaningfully engage in therapeutic support.

In 2023:

24 people received less than 6 months’ leave
36 people received between 6-12 months’ leave
39 people received between 13-24 months’ leave
14 people received leave for a period over 24 months

The majority of recent grants I have been made aware of have been for 12 months or less. One very concerning example of a person receiving such a short period of leave that their leave expired before they even received their biometric residence permit, rendering the grant less than worthless.

These shorts periods of leave are insufficient. They fail to consider the long-term needs that survivors have, particularly when the upheaval that the transitional period after a grant of leave, is considered.

The guidance requires that a decision on whether a person is entitled to leave must be automatically considered after a positive conclusive grounds decision is made. In practice, unsurprisingly when the above data is considered, grants of leave are only made after strong representations are submitted, usually accompanied by clinical evidence.

Refusals of leave

The primary reason for the refusals, that I have been made aware of, are that a person would theoretically be able to access therapeutic support in their home country. These are particularly commonplace when a person has not yet been able to engage in therapy in the UK, for example if they are on a waiting list or they are between therapy types.

I am not able to comment on the availability of treatment outside of the UK but some of the sources relied upon that we have seen have been concerning and appear weak and flawed, even to a lay person without expert knowledge of the country in question.

These decisions are also made regardless of whether the person has an outstanding asylum claim or not. This is because the most recent policy no longer requires the decision maker to carry out an assessment as to whether the person is at risk of re-trafficking. Grants of leave under R (KTT) v Secretary of State for the Home Department [2021] EWHC 2722 (Admin), which found that survivors of trafficking should be granted leave while their asylum claim is pending, are no longer being made (a write up of this can be found here).

The refusals of leave following recognition that they have survived trafficking are understandably causing distress and confusion to individuals. They are receiving decisions that state they are not entitled to a grant of leave because they can go back to their home country and receive treatment there, even when they have an outstanding asylum claim where they are claiming the opposite.

I have not seen any refusals where consideration has been given to whether there are any psychological or physical barriers to a person receiving treatment in their home country, irrespective of whether it is theoretically available. It is clinically accepted that when an individual receives long-term specialist therapy in a trusting therapeutic environment that they experience as safe and secure, then their prospects of eventual recovery are greater.

If on the other hand, the person is in an environment perceived to be threatening and dangerous, for example a country for which the threat of persecution or re-trafficking exists, then their mental condition would be more likely to deteriorate and their ability to engage effectively with any therapy, regardless of its availability, would be severely curtailed.

Where a person may not qualify under current policy for a grant of leave following identification as a victim of trafficking, they may instead be a refugee entitled to a grant of leave on that basis. It is evident that survivors who would be at increased risk of re-exploitation or further harm if returned to their country of origin are frequently having to rely on the UK asylum system as a ‘safety net’ if they have any hope of receiving long-term support to assist their recovery.

Recent development

On 11 July 2024 the policy was updated to confirm that the Home Office are:

pausing all decisions that consider grants of temporary permission to stay for victims of human trafficking or slavery (VTS) until further notice. This is a temporary pause whilst we consider our approach to granting VTS where there is a need to assist in recovery from physical or psychological harm with regards to the victim’s experience of exploitation.

At this stage we have no further information on how long this pause will take or how the decision making may or may not change. It is also not clear if decisions for people who would be entitled to VTS on the basis that they are seeking compensation or co-operating with criminal proceedings as the wording is fairly ambiguous. I understand that practitioners in the sector are engaging with the Home Office to get further clarity on this.

It is likely that this pause has been prompted by the large number of legal challenges that have been lodged for individuals, none of which have yet been heard substantively. This remains a very live issue and we can only hope that policy will be amended favourably.

Conclusion

The decrease in the grants of leave to remain combined with the significantly reduced access to the asylum system will lead to even more survivors being left in limbo and at increased risk of being re-trafficked or further harm. The intention behind granting survivors of trafficking limited leave to remain is to assist with a person’s recovery or to enable them to co-operate with criminal proceedings.

The previous government’s approach failed to do this and decisions made under this policy are worsening people’s mental health and increasing their recovery needs. This in turn makes people less likely to want to engage with the police in authorities, hindering any attempts to prosecute their traffickers.

If the new government is to ensure that the UK is a country that genuinely offers protection to survivors of trafficking then we need a system whereby all survivors with a positive conclusive grounds decision are automatically granted support. This includes meaningful long-term leave to remain and recourse to public funds, for at least 30 months with a route to settlement.