Home Office policy on leave to remain for potential trafficking victims found unlawful

Judgment was handed down yesterday in the case of EOG v Secretary of State for the Home Department [2020] EWHC 3310 (Admin), a significant decision on the obligations of the Home Office to potential victims of human trafficking. The claim successfully challenged the Home Office policy which failed to provide any route to leave to remain or a right to work for potential victims of trafficking who are referred into the National Referral Mechanism (NRM). 

In a concise and clear judgment, Mr Justice Mostyn found that the Home Secretary has unlawfully failed to put in place a policy providing for the terms on which victims within the NRM can be granted interim discretionary leave while they wait for a final decision. He held that … there is an unlawful lacuna in the existing policy inasmuch as it fails to implement the obligation in Article 10.2 [of the European Convention Against Trafficking] formally to protect persons in receipt of a positive reasonable grounds decision from removal from this country’s national territory pending the conclusion of the process […] The [Home Office] must formulate a policy that grants such persons interim discretionary leave on such terms and conditions as are appropriate both to their existing leave positions and to the likely delay that they will face.

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