Introduction

The case EOG & Anor v Secretary of State for the Home Department ([2022] EWCA Civ 307) represents a significant development in the legal landscape surrounding victims of human trafficking in the United Kingdom. This appellate judgment from the England and Wales Court of Appeal (Civil Division) addresses the legality of the Home Department's policies concerning the grant of leave to remain to individuals identified as victims or potential victims of trafficking.

The appeal involves two separate cases:

• EOG: A New Zealand national classified as a potential victim of trafficking, challenging the policy's failure to provide leave to remain during the identification period.
• KTT: A Vietnamese national who was a confirmed victim of trafficking, contesting the refusal to grant leave to remain while her asylum claim was pending.

Both cases hinge on whether the Home Department's policies comply with the Council of Europe Convention on Action against Trafficking in Human Beings (ECAT).

Summary of the Judgment

The Court of Appeal delivered a nuanced judgment, revisiting and clarifying previous rulings related to ECAT's implementation within UK policy frameworks. Key outcomes include:

• EOG: The appellant successfully overturned Mostyn J's earlier decision, asserting that ECAT's Article 10.2 imposes only a negative obligation (not to remove potential victims) and does not mandate the grant of discretionary leave to remain.
• KTT: The appellant's challenge was dismissed. The Court upheld that ECAT's Article 14.1(a) requires consideration of the necessity of a victim's stay due to personal circumstances but does not impose a positive obligation to grant leave to remain.

Overall, the judgment reinforces the distinction between potential and confirmed victims of trafficking, aligning UK policies with ECAT's stipulated obligations.

Analysis

Precedents Cited

The judgment extensively references prior cases to contextualize and support the Court's reasoning:

• R (Atamewan) v Secretary of State for the Home Department [2013]: Established that guidance not properly reflecting ECAT's requirements constitutes a justiciable error.
• R (Galdikas) v Secretary of State for the Home Department [2016]: Held that the Home Department's policies failed to comply with ECAT's Article 12.
• PK (Ghana) v Secretary of State for the Home Department [2018]: Determined that the policy did not adequately reflect the necessity stipulated in ECAT's Article 14.1(a).
• MS (Pakistan) v Secretary of State for the Home Department [2020]: Confirmed that guidance must comply with ECAT and is justiciable if it does not.
• MN v Secretary of State for the Home Department [2020]: Reiterated that guidance intended to implement ECAT must be construed to comply with its obligations as much as possible.

These precedents collectively established the framework within which the current judgment was analyzed, emphasizing the judicial scrutiny of policies purported to fulfill international obligations.

Legal Reasoning

The Court's legal reasoning centered on the interpretation of specific ECAT provisions and their integration into domestic policy:

• Article 10.2 ECAT: Confirms that the Home Department has a negative obligation not to remove potential victims but does not require providing discretionary leave to remain during the identification period.
• Article 14.1(a) ECAT: Requires consideration of whether a victim's stay is necessary due to personal circumstances but does not impose a duty to grant leave to remain. Instead, it mandates that decisions reflect the necessity based on the victim's situation.
• The Court emphasized the distinction between negative and positive obligations, clarifying that ECAT does not compel the state to extend immigration status but rather to refrain from removal and to provide basic assistance.
• In hearing KTT's case, the Court confirmed that while ECAT guides policy implementation, it does not create enforceable rights absent domestic incorporation.

The Court rejected attempts to overextend ECAT's obligations beyond their clear legislative language, maintaining that policy lapses should not be interpreted as requiring positive immigration actions unless explicitly mandated by ECAT.

Impact

This judgment has several profound implications:

• Policy Clarity: Provides clearer boundaries on the extent of the Home Department's obligations under ECAT, particularly distinguishing between potential and confirmed victims.
• Judicial Review: Reinforces the importance of accurate policy implementation in alignment with international conventions and the judiciary's role in overseeing such compliance.
• Immigration Practices: Affirms that discretionary leave to remain for potential victims is not a legal requirement under ECAT, potentially impacting how similar cases are handled in the future.
• Victim Support: Highlights systemic issues such as prolonged identification and asylum decision periods, underscoring the need for administrative reforms to better support victims.

Future cases will likely reference this judgment when evaluating government policies against ECAT, ensuring that obligations are interpreted within their intended scope.

Complex Concepts Simplified

To facilitate better understanding, key legal concepts and terminologies from the judgment are clarified:

• ECAT (Council of Europe Convention on Action against Trafficking in Human Beings): An international treaty aimed at preventing trafficking, protecting victims, and prosecuting traffickers. It outlines specific obligations for state parties regarding the treatment of trafficking victims.
• Discretionary Leave to Remain (DL): A form of temporary immigration status granted by the Home Department in the UK, allowing individuals to stay in the country under specific circumstances not covered by standard immigration rules.
• Potential vs. Confirmed Victims: Potential victims are individuals whom authorities have reason to believe are victims of trafficking but whose status has not been conclusively determined. Confirmed victims have undergone a thorough identification process and have been formally recognized as victims under ECAT.
• Identification Period: The timeframe between the initial reasonable grounds decision and the conclusive grounds decision determining victim status. ECAT mandates that during this period, individuals should not be removed from the country and should receive basic assistance.
• Justiciability: The capacity of a case or issue to be decided by a court. In the context of this judgment, it refers to whether international treaties like ECAT can be directly enforced or require domestic legislation for judicial review.
• Negative vs. Positive Obligations: Negative obligations require the state to refrain from certain actions (e.g., not removing potential victims). Positive obligations compel the state to take specific actions (e.g., granting leave to remain).

Conclusion

The EOG & Anor v Secretary of State for the Home Department judgment underscores the necessity for clear delineation between a state's negative and positive obligations under international treaties like ECAT. By ruling in favor of EOG and dismissing KTT's appeal, the Court of Appeal has reinforced that while the UK must refrain from removing potential trafficking victims and provide basic assistance, it is not legally bound to grant discretionary leave to remain unless explicitly required by ECAT's provisions for confirmed victims.

This decision affirms the importance of adhering strictly to the letter of international obligations without overextending judicial interpretation. It also highlights ongoing systemic issues within the UK's immigration and asylum processes, particularly concerning the prolonged identification and decision-making periods that adversely affect trafficking victims' recovery and support.

Moving forward, policymakers and legal practitioners must ensure that guidance and administrative measures comply precisely with international conventions, recognizing the limits of judicial oversight in areas governed by non-incorporated treaties. Additionally, the judgment calls attention to the pressing need for administrative reforms to expedite processes benefiting trafficking victims, thereby aligning more closely with the humanitarian objectives of ECAT.