1. Introduction

The case of Secretary of State for the Home Department v S ([2025] EWCA Civ 188) represents a significant development in the interpretation and application of the transitional provisions contained in the Secretary of State’s guidance on discretionary leave (the DLP). At the heart of the dispute are the differing approaches to granting leave to remain for victims of trafficking (“VOTs”), particularly those falling within the so-called “KTT cohort.” These individuals, having received a positive conclusive grounds decision and having submitted relevant asylum claims before 30 January 2023, were potentially eligible for the historic “XY concession.” However, questions arose over whether the transitional provisions should apply uniformly or whether those subject to deportation orders or proceedings should be treated differently.

The proceedings concern two appellants – anonymised as VLT and S – who challenged decisions of both the Upper Tribunal (Immigration and Asylum Chamber) and earlier ministerial determinations. The case brings into focus the interplay between new statutory frameworks (introduced by the Nationality and Borders Act 2022 and corresponding statutory guidance) and earlier decisions established in cases such as KTT, XY, and EOG.

2. Summary of the Judgment

The Court of Appeal ultimately upheld the Secretary of State’s appeal and dismissed the cross‑appeal concerning article 14 of the European Convention on Human Rights (ECHR) in S’s case. The judgment found that the transitional provisions of the DLP were correctly construed despite a policy shift which was implemented on 30 January 2023. Specifically, while the “XY concession” was meant to extend to most members of the KTT cohort, it was also clearly limited by an express “deportation carve-out” for those who are subject to deportation orders or proceedings.

The court held that the Upper Tribunal erred in its interpretation by reading the transitional provisions overbreadth in certain areas. The court clarified that, under the new legal framework, decisions on discretionary leave (DL) for trafficking victims should be made against the backdrop of the revised statutory regime. As the new scheme no longer compulsorily implements article 14(1)(a) but relies on a narrower interpretation under article 14(1)(b) in accordance with the modern statutory scheme, the decision to refuse leave in the cases of VLT and S was ultimately lawful.

3. Analysis

3.1 Precedents Cited

The judgment draws on several key precedents that have shaped the legal landscape regarding discretionary leave for victims of human trafficking:

• KTT and EOG: These cases established that earlier versions of the Secretary of State’s policy (formerly known as the MSL Guidance) were intended to give effect to ECAT Article 14(1)(a), ensuring that a VOT’s stay could be considered necessary on the basis of their personal circumstances.
• R (XY) v Secretary of State for the Home Department: This decision illuminated the background and justification for accommodating a large cohort of trafficking victims under transitional measures – the “XY concession.” It also underlined the significance of a policy shift when new statutory provisions come into effect.
• EN (Serbia) v Secretary of State: Though primarily a Refugee Convention case, its analysis on statutory orders and the legal status of related provisions had an influence, particularly when discussing the status of “foreign criminal” and the applicability of deportation orders.

These precedents provided a fundamental framework through which the appellate court evaluated the Secretary of State’s policy change – from a broad adherence to the principles of ECAT Article 14(1)(a) to a more constrained application consistent with the new legislative background.

3.2 Legal Reasoning

The court’s legal reasoning hinged upon three principal points:

• The Interpretation of Transitional Provisions: The Court emphasised that once Parliament effected a policy change by introducing the Nationality and Borders Act 2022, the Secretary of State’s updated policies (VTSP and revised version of the DLP [version 10]) had to be read in that new statutory context. The transitional provisions were intended to remediate the injustice caused by delays in decision‑making within the historical framework (the XY concession), but only for those not subject to deportation measures.
• Policy Shift and Statutory Framework: In light of the statutory reforms effective from 30 January 2023, the court held that there was a significant shift in policy. This shift meant that discretionary leave under article 14(1)(a) was no longer the guiding principle for all trafficking victims. Instead, only specific categories – as identified in the VTSP – were to be treated under the legacy terms.
• The Lawfulness of the Deportation Carve-Out: A central issue was whether the exclusion of those subject to deportation orders (or proceedings) from the XY concession amounted to discriminatory treatment. The court found that, given the comprehensive deportation and public order framework, this differential treatment was both rational and justified. It was emphasized that decision-makers remained under an obligation to consider each case on its merits under the new scheme.

3.3 Impact on Future Cases and Policy

This judgment sets an important precedent for future immigration and human rights cases involving trafficking victims. Key potential impacts include:

• Clarification of Transitional Measures: Future appellants will have a clearer framework regarding which cases will benefit from historical concessions (the XY concession) and which will be subject to the new regime – particularly where applicants are involved in deportation proceedings.
• Guidance on Statutory Construction: The ruling confirms that when statutory reforms are implemented, existing policies must be re-interpreted against the new statutory background. Lower courts and decision-makers now have guidance on reconciling policy shifts with established international obligations.
• Balancing Human Rights and Public Order: By upholding the deferential treatment of those treated as “foreign criminals” under the deportation regime, the judgment signals that legislative objectives regarding public order and deportation remain paramount, even where they might otherwise appear to conflict with broader human rights principles.

3.4 Complex Concepts Simplified

To assist readers in understanding the intricate legal concepts in this case, below is a summary of key terms and principles:

• Discretionary Leave (DL): A form of leave to remain in the UK, granted in exceptional circumstances, particularly to victims of human trafficking.
• DLP (Discretionary Leave Policy): The Secretary of State’s guidance document governing the grant of DL. Version 10 reflects a post-30 January 2023 regulatory regime.
• VTSP (Temporary Permission Scheme for Victims): A new scheme published subsequent to the 2022 Act, which excludes the application of the older, broader discretionary leave criteria in certain cases, particularly where deportation proceedings are involved.
• KTT Cohort: A group of trafficking victims who received a positive conclusive grounds decision and had made an asylum claim before 30 January 2023 – originally meant to benefit from historical concessions (the XY concession).
• ECAT Article 14(1)(a): A provision from the Council of Europe Convention against Trafficking in Human Beings which obligates state parties to issue a renewable residence permit if the individual’s stay is deemed necessary on account of their personal circumstances.

4. Conclusion

The Court of Appeal’s decision in Secretary of State for the Home Department v S represents an important juncture in immigration jurisprudence. It confirms that, in the wake of significant statutory reforms, historical concessions may be extended only selectively. By upholding the lawfulness of the transitional provisions while affirming the “deportation carve-out” for those subject to deportation proceedings, the Court has delineated the limits of applying ECAT Article 14(1)(a) under the older discretionary leave policy.

This case clarifies the legal framework governing discretionary leave for trafficking victims, ensuring that decision‑makers interpret policies in line with both changing statutory requirements and fundamental public policy considerations. The ruling provides critical guidance for future cases where procedural delays, shifting policy intentions, and the dual objectives of protecting vulnerable individuals while securing public order must be balanced.

Ultimately, the judgment underscores that while the legacy rationale for granting DL to victims on humanitarian grounds remains influential, contemporary legislative reforms mandate a more narrowly tailored approach – one that respects the boundaries set by new statutory instruments and upholds the overarching imperatives of deportation and public order.

5. Final Commentary

Legal practitioners and policymakers will no doubt study this lengthy and detailed judgment for its analytical depth on statutory interpretation, the reconciliation of international obligations with domestic legislative shifts, and its practical impact on the adjudication of immigration cases. Its structured approach to dissecting transitional provisions and assessing the proportionality of differential treatment provides an invaluable roadmap for future litigation in this complex area of law.