R (on the application of VLT (Vietnam)) v Secretary of State for the Home Department

This case involved a judicial review concerning the interpretation of policy guidance for victims of trafficking who received a positive conclusive grounds decision and had an outstanding asylum claim before 30 January 2023, while also being subject to a deportation order.

TLDR:

• Judicial review of policy guidance for trafficking victims.
• Applicant challenged refusal of temporary permission to stay.
• Upper Tribunal found deportation carve-out in policy unlawful.
• Decision impacts interpretation of ECAT and Nationality and Borders Act 2022.

The applicant, VLT, a Vietnamese national, was an asylum seeker and confirmed victim of trafficking. He was subject to a deportation order and sought judicial review of the Secretary of State's refusal to grant temporary permission to stay under the Discretionary Leave policy (DLP) version 10, published on 16 March 2023.

The applicant's immigration history was complex. He had been trafficked to the UK on three occasions and forced to cultivate cannabis to repay a debt. He was convicted of conspiracy to produce cannabis and sentenced to 8 months' imprisonment. A deportation order was signed in January 2013. The applicant claimed asylum in June 2018, fearing re-trafficking on return to Vietnam.

The applicant was referred to the National Referral Mechanism and received a positive conclusive grounds decision in September 2022. He requested discretionary leave to remain in November 2022, supported by a psychological report. The Secretary of State refused temporary permission to stay in June 2023, citing that it was not necessary for medical reasons and that the applicant's previous behavior was deemed not conducive to the public good.

The applicant challenged this decision on three grounds: breach of Article 14(1)(a) of the Council of Europe Convention on Action against Trafficking in Human Beings (ECAT), breach of Article 4 of the European Convention on Human Rights (ECHR), and failure to consider material expert evidence. The Upper Tribunal Judge Frances found that the DLP intended to comply with Article 14(1)(a) ECAT for pre-30 January 2023 cases but unlawfully excluded individuals subject to deportation proceedings.

The Tribunal concluded that the deportation carve-out in the DLP was incompatible with Article 14(1)(a) ECAT and sections 63 and 65 of the Nationality and Borders Act 2022. The applicant's personal situation brought him within the transitional provisions of the DLP, and the decision to refuse discretionary leave was unlawful.

The Tribunal also found that the refusal of temporary permission to stay was unlawful because the respondent applied the wrong policy. The decision-maker misunderstood the relevant rules and policy, leading to an incorrect refusal based on the applicant's past behavior.

Ultimately, the Tribunal ruled that the transitional provisions in the DLP were intended to implement the judgment in EOG & KTT v SSHD and that the respondent failed to do so. The decision of 12 June 2023 was therefore in breach of the DLP and unlawful.