“Identification of the victims 1. Each Party shall provide its competent authorities with persons who are trained and qualified in preventing and combating trafficking in human beings, in identifying and helping victims, including children, and shall ensure that the different authorities collaborate with each other as well as with relevant support organisations, so that victims can be identified in a procedure duly taking into account the special situation of women and child victims … . 2. Each Party shall adopt such legislative or other measures as may be necessary to identify victims as appropriate in collaboration with other Parties and relevant support organisations. Each Party shall ensure that, if the competent authorities have reasonable grounds to believe that a person has been victim of trafficking in human beings, that person shall not be removed from its territory until the identification process as victim of an offence provided for in Article 18 of this Convention has been completed by the competent authorities and shall likewise ensure that that person receives the assistance provided for in Article 12, paragraphs 1 and 2. 3-4. …”
“Recovery and reflection period 1. Each Party shall provide in its internal law a recovery and reflection period of at least 30 days, when there are reasonable grounds to believe that the person concerned is a victim. Such a period shall be sufficient for the person concerned to recover and escape the influence of traffickers and/or to take an informed decision on cooperating with the competent authorities. During this period it shall not be possible to enforce any expulsion order against him or her. This provision is without prejudice to the activities carried out by the competent authorities in all phases of the relevant national proceedings, and in particular when investigating and prosecuting the offences concerned. During this period, the Parties shall authorise the persons concerned to stay in their territory. 2. During this period, the persons referred to in paragraph 1 of this Article shall be entitled to the measures contained in Article 12, paragraphs 1 and 2. 3. The Parties are not bound to observe this period if grounds of public order prevent it or if it is found that victim status is being claimed improperly.”
“Residence permit 1. Each Party shall issue a renewable residence permit to victims, in one or other of the two following situations or in both: a the competent authority considers that their stay is necessary owing to their personal situation; b the competent authority considers that their stay is necessary for the purpose of their cooperation with the competent authorities in investigation or criminal proceedings. 2. The residence permit for child victims, when legally necessary, shall be issued in accordance with the best interests of the child and, where appropriate, renewed under the same conditions. 3. The non-renewal or withdrawal of a residence permit is subject to the conditions provided for by the internal law of the Party. 4. If a victim submits an application for another kind of residence permit, the Party concerned shall take into account that he or she holds, or has held, a residence permit in conformity with paragraph 1. 5. Having regard to the obligations of Parties to which Article 40 of this Convention refers, each Party shall ensure that granting of a permitaccording to this provision shall be without prejudice to the right to seek and enjoy asylum.”
“(1) The Secretary of State must issue guidance to such public authorities and other persons as the Secretary of State considers appropriate about — (a) the sorts of things which indicate that a person may be a victim of slavery or human trafficking; (b) arrangements for providing assistance and support to persons who there are reasonable grounds to believe may be victims of slavery or human trafficking; (c) arrangements for determining whether there are reasonable grounds to believe that a person may be a victim of slavery or human trafficking. (2) The Secretary of State may, from time to time, revise the guidance issued under subsection (1). (3) The Secretary of State must arrange for any guidance issued or revised under this section to be published in a way the Secretary of State considers appropriate. (4) …”
“15.154. Non-EEA nationals will automatically be considered for a grant of Discretionary Leave if they do not already have the right to remain. EEA nationals may apply for discretionary leave. Victims will need a positive Conclusive Grounds decision to be considered for Discretionary Leave. 15. 155. Discretionary Leave to remain may be available where a victim is assisting as a witness in a criminal investigation. 15. 156. Full guidance on when Discretionary Leave will be granted to victims of modern slavery is contained in Discretionary Leave consideration for victims of modern slavery [the underlining indicates a hyperlink]. 15. 157. The guidance explains the circumstances in which it may be appropriate to grant Discretionary Leave to individuals confirmed as victims of modern slavery by the NRM, and the considerations that must be made before such a decision is made. It also deals with extending Discretionary Leave or curtailing leave as necessary.”
“When to consider a grant of discretionary leave [1] A person will not qualify for discretionary leave (DL) solely because they have been identified as a victim of modern slavery - there must be reasons based on their individual circumstances to justify a grant of DL where they do not qualify for other leave such as asylum or humanitarian protection. [2] … [3] Discretionary leave may be considered where a Competent Authority has made a positive conclusive grounds decision that an individual is a victim of modern slavery they are not eligible for any other form of leave (such as asylum or humanitarian protection)and either: • leave is necessary owing to personal circumstances • leave is necessary to pursue compensation • victims who are helping police with their enquiries Leave is necessary owing to personal circumstances [4] When deciding whether a grant of leave is necessary under this criterion an individualised human rights and children safeguarding legislation-based approach should be adopted. The aim should be to protect and assist the victim and to safeguard their human rights. In seeking to do so decision makers should primarily: • assess whether a grant of leave to a recognised victim is necessary for the UK to meet its objective under the Trafficking Convention - to provide protection and assistance to that victim, owing to their personal situation [5] It is not possible to cover all the circumstances in which DL may be appropriate because this depends on the totality of evidence available in individual cases. However, considerations when deciding if DL is appropriate might include (the list is not intended to be exhaustive): • whether the person may be eligible for a more advantageous form of leave, for instance, asylum or humanitarian protection • whether leave is necessary because there is a significant and real risk in light of objective evidence that the person may be re-trafficked or become a victim of modern slavery again - in such cases consideration should also be given as to whether the risk is greater in the UK or in the person’s home country • whether, if returned home, the person would face harm or ill-treatment from those who first brought them to the UK, or exploited them in their home country • whether on the objective information and evidence in a particular case the receiving state have the willingness and ability to provide through its legal system a reasonable level of protection to the person, if returned to their care (it would be rare for an individual to be able to rely on there being an absence of sufficient protection for victims of modern slavery in an EU member state) • whether DL is necessary for the person to seek compensation through the Courts or is assisting the police with a criminal investigation or prosecution [6] Additionally, a person may provide evidence from a healthcare professional that they need medical treatment. In these cases, consider whether it is necessary for the treatment to be provided in the UK. In terms of needing to stay in the UK to have such treatment, you may wish to note that the UK’s international obligations do not extend to a requirement that treatment must be provided by specialists in trafficking, or that it be targeted towards one aspect of an individual’s needs (the consequences of trafficking) as opposed to his or her overall psychological needs as set out in the case of EM v SSHD. … Leave is necessary to pursue compensation ... Victims who are helping police with their enquiries …”
“Mr Eadie submitted in relation to the NRM decision that the key question was whether the policy set out in the Guidance … was sufficient to comply with the UK's international obligations under [ECAT]. He accepted, at least in this court, that although [ECAT] had not been transposed into domestic law by legislation and so did not have ‘direct effect’, insofar as the Guidance purported to give effect to the terms of [ECAT] and failed to do so, that would be a justiciable error of law. He also accepted that to the extent that the NRM Decision was itself based on the terms of the Guidance, if they were, in turn, based on an erroneous interpretation of [ECAT], then the NRM Decision could be challenged by Judicial Review because that decision would then have been based on a misdirection as to the legal basis for the relevant wording of the Guidance.”
“It was common ground before [the Judge] that the Secretary of State’s policy guidance was intended to, and purported to, give effect to [ECAT]; and that, if it failed to give effect to the Convention, then that would be a justiciable error of law. Before us, after some consideration and after taking instructions, Miss Bretherton, who also appeared for the Secretary of State below, confirmed that concession.”
“However, the Secretary of State has consistently accepted that the NRM should comply with ECAT. In R (Atamewan) v Secretary of State for the Home Department[2013] EWHC 2727 ;[2014] 1 WLR 1959 , para 55, it was accepted that it would be a justiciable error of law if the NRM Guidance did not accurately reflect the requirements of ECAT and a decision based on that error would accordingly be unlawful. The same was common ground in R (PK (Ghana)) v Secretary of State for the Home Department[2018] EWCA Civ 98 ;[2018] 1 WLR 3955 .”
“36. Subject to the arguments about SC, I would have little hesitation in holding that Galdikas was correctly decided for the reasons which Sir Stephen Silber gave and that the concessions of law as to the question of justiciability, referred to above, were correctly made by the Defendant and accepted by the courts in those cases. The critical point in the PK (Ghana) line of cases is that the source of the public law obligation contended for was the declared policy of the Defendant rather than ECAT itself. In each case it was decided or conceded that, as a matter of fact - this was in fact the Defendant's policy - and construction - this is what her policy documents said - the Defendant had committed to making the relevant decision in accordance with the requirements of the relevant article(s) of the ECAT. It was therefore permissible for the court, applying conventional public law principles, to consider what the requirements of those articles were with a view to deciding whether the policy correctly stated their effect and whether a given decision, taken in accordance with that policy, was lawful. This did not involve direct enforcement of an unincorporated treaty as the treaty was not the source of the obligation contended for. Nor did it involve the filling of lacunae, as Mr Tam submitted, given that the claimants in those cases relied on what was said in the policy documents. 37. At the same time the other point made by Mr Eadie, and accepted by the Divisional Court in Atamewan, that an international treaty cannot be used to fill a lacuna in a statement of policy, is important. This is an example of direct reliance on the international treaty, which is not permitted. I therefore also agree with Sir Stephen Silber that for the Claimant to succeed in the present case she must also show that, on its true construction, the MSL Policy was intended to commit the Defendant to making decisions as to MSL in accordance with Article 14(1)(a), ECAT before going on to show that the Defendant has done so incorrectly and that the decision in the Claimant’s case is therefore in breach of the MSL Policy and unlawful.”
“I do not accept that the decision in SC renders the question raised by Ground 1 [i.e. the contention that the Guidance was inconsistent with article 14.1 (a)] non justiciable or even casts doubt on the correctness of the principles which underpin the decisions in the PK (Ghana) line of cases. I agree with Mr Buttler that SC was a straightforward application of the Rayner principles in the context of a materially different legal issue to the present one.”
“48. … I agree with Ms Weston QC that there is an unlawful lacuna in the existing policy inasmuch as it fails to implement the obligation in Article 10.2 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. Suffering such persons to remain as overstayers, or as illegal immigrants, does not fulfil the obligation. The defendant 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 [my emphasis]. It is not for me to prescribe what such terms and conditions should be. I agree with Mr Tam QC that constitutionally that is a matter reserved to the defendant. However, the terms and conditions must obviously be lawful and this would mean that someone in the position of the claimant, who has a time-limited right to work, should not have the arbitrary adverse consequence of a removal of that right meted out to her simply by virtue of the delays that she is likely to face. 49. What interim discretionary leave policy the defendant should formulate in relation to those potential victims who have no leave of any type to be here will be a matter for her to decide. 50. I therefore will grant a declaration which incorporates my decision set out in para 48 above. I ask counsel to seek to agree the terms of the declaration. If they cannot do so then I will rule on any disputed wording.”
“The defendant has unlawfully failed to implement her obligations underArticle 10(2) of the European Convention Against Trafficking to protect persons from removal from the territory of the United Kingdom after she has decided that there are reasonable grounds to believe that they are victims of trafficking because she does not have a specific policy concerning the circumstances in which, and the terms upon which, appropriate grants of interim discretionary leave may be made to such persons if: (a). They have leave to remain in the UK at the time they receive that reasonable grounds decision, but that leave expires during the period whilst they are awaiting a decision on whether there are conclusive grounds to believe that they are a victim of trafficking; or (b). They do not have leave to remain in the UK at the time they receive that reasonable grounds decision.”
“Many victims, however, are illegally present in the country where they are being exploited. Paragraph 2 seeks to avoid their being immediately removed from the country before they can be identified as victims. Chapter III … secures various rights to people who are victims of trafficking in human beings. Those rights would be purely theoretical and illusory if such people were removed from the country before identification as victims was possible.”
“Although the drafting is ambiguous it seems to me that the reference to ‘this period’ in the final sentence is indeed to the recovery and reflection period. Article 13 is about the recovery and reflection period and nothing else. Had the final sentence been referring to a different period it would have said ‘that period’ to distinguish it from the period referred to in the heading of the Article and in its first three sentences.”
“The words ‘it shall not be possible to enforce any expulsion order against him or her’ mean that the victim must not be removed from the Party’s territory during the recovery and reflection period. Although free to choose what method to employ, Parties are required to create a legal framework allowing the victim to remain on their territory for the duration of the period. To meet this end, in accordance with national legislation, each Party shall provide victims, without delay, with the relevant documents authorising them to remain on its territory during the recovery and reflection period.”
“… Member States’ positive obligations underart. 4 of the Convention must be construed in light of the Council of Europe’s Anti-Trafficking Convention and be seen as requiring not only prevention but also victim protection and investigation. The Court is guided by the Anti-Trafficking Convention and the manner in which it has been interpreted by GRETA.”
“Victims whose stay in the UK may be necessary due to their personal circumstances, such as family and health needs, should be considered for Discretionary Leave (DL) in line with existing policy.”
“When you make a conclusive decision and the person does not meet the criteria for any of the other leave or protection categories, it may be appropriate to grant a victim of trafficking discretionary leave if their personal circumstances are compelling. For example, to allow them to finish a course of medical treatment that would not be readily available if they were to return home. This must be considered in line with the discretionary leave policy (see related link).”
“If the individual receives a positive CG decision they may in some circumstances be considered for a grant of discretionary leave (DL) to remain in the UK based on the policy set out in “Discretionary leave considerations for victims of modern slavery” (version 2 published September 2018). ... The policy exists to reflect the requirement in Article 14 (1) (a) of ECAT to consider whether a grant of discretionary leave is necessary owing to the individual’s personal situation [my emphasis].”
“89. … I prefer Mr Buttler’s interpretation of Article 14 ECAT, which is based on an ordinary reading of the text of the provision and, in my view, consistent with its purpose. The reality of Mr Tam’s argument on interpretation is that Article 14(1) should be read as if it says that the issuing of the residence permit must be necessary, whereas the language of the provision clearly requires consideration of whether the stay is necessary in which case the permit must be issued. Indeed, the requirement to consider whether ‘their stay is necessary’ leaves room for it to be the case that the victim is staying in any event. The provision then asks whether the stay is necessary for a particular reason or purpose, in which case a residence permit, with attendant benefits and advantages, is required to be issued. The language does not appear to regard the residence permit as solely for the purpose of facilitating a stay which would not otherwise be possible, although this may be an important function of such a permit. Rather, the point of the residence permit is at least in part to trigger additional advantages, as will be discussed below. 90. I do not consider that applying the language of Article 14 is an overly technical approach, or inconsistent with the approach required by the Vienna Convention. Moreover, the approach suggested by the language is consistent with the aims of ECAT including the aim of protecting and assisting the victims of trafficking. Mr Tam’s suggested interpretation of Article 14 is significantly less likely to further those aims given that it has the consequence of reducing the likelihood that a residence permit will be issued, with the beneficial consequences to which Mr Buttler refers.”
“182. The two requirements laid down in Article 14, paragraph 1, for issue of a residence permit are that either the victim’s stay be ‘necessary owing to their personal situation’ or that it be necessary ‘for the purpose of their cooperation with the competent authorities in investigation or criminal proceeding’. The aim of these requirements is to allow Parties to choose between granting a residence permit in exchange for cooperation with the law enforcement authorities and granting a residence permit on account of the victim’s needs, or indeed to adopt both simultaneously. 183. Thus, for the victim to be granted a residence permit, and depending on the approach the Party adopts, either the victim’s personal circumstances must be such that it would be unreasonable to compel them to leave the national territory, or there has to be an investigation or prosecution with the victim co-operating with the authorities. Parties likewise have the possibility of issuing residence permits in both situations.”