Secretary of State for the Home Department v S

Factual and Procedural Background

The appeals arise from decisions by the Secretary of State refusing leave to remain as victims of trafficking ("VOTs") under the Immigration Rules and refusing discretionary leave ("DL"). Two appellants, hereinafter "VLT" and "S", challenged these refusals before the Upper Tribunal (Immigration and Asylum Chamber) ("the UT"). The UT quashed the decision in VLT's case, declared part of the Secretary of State's discretionary leave policy unlawful, and ordered the grant of DL absent special circumstances. It also allowed S's claim but dismissed his argument that the policy breached article 14 of the European Convention on Human Rights ("ECHR"). Both parties cross-appealed.

Central to the appeals is the interpretation of transitional provisions in the Secretary of State's guidance on discretionary leave ("DLP"), version 10, published 16 March 2023. These provisions create a concession for a subgroup of VOTs, called the "KTT cohort," characterized by having made asylum claims partially based on fears of re-trafficking ("relevant claims"). The dispute concerns whether the DLP intended to apply the Council of Europe Convention against Trafficking in Human Beings ("ECAT") to this cohort, particularly article 14(1)(a).

VLT is a Vietnamese national who was trafficked multiple times, convicted of conspiracy to cultivate cannabis, and subject to a deportation order. He applied for DL, which was refused under the new policy. His asylum claim was later allowed by the First-tier Tribunal. S, believed to be Nigerian, was trafficked as a child, has multiple convictions, and was subject to deportation proceedings. He received positive conclusive grounds decisions but had his DL refused under the post-30 January 2023 regime. Both appellants challenged the lawfulness of the Secretary of State's refusal decisions and the policies applied.

Legal Issues Presented

1. Is the Upper Tribunal's interpretation of the transitional provisions of the Secretary of State's discretionary leave policy (DLP) correct?
2. If the interpretation is incorrect, does the application of the DLP to S's case result in a breach of article 4 rights read with article 14 of the ECHR?

Arguments of the Parties

Appellant's Arguments

• VLT contended that the Secretary of State should have considered his case under the DLP rather than the new policy, relying on the transitional provisions which, they argued, entitle members of the KTT cohort to DL in accordance with ECAT article 14(1)(a).
• S argued that the Secretary of State unlawfully failed to apply the DLP, instead applying the post-30 January 2023 policy, and that this resulted in discrimination contrary to article 14 of the ECHR when read with article 4, particularly as he was subject to deportation proceedings.
• Both appellants challenged the legality of the "deportation carve-out" which excluded those subject to deportation proceedings from the transitional concession.

Respondent's Arguments

• The Secretary of State submitted that the transitional provisions in the DLP lawfully provide for a concession ("the XY concession") for members of the KTT cohort with outstanding relevant claims before 30 January 2023, but that those subject to deportation orders or proceedings are excluded and must be considered under the new scheme (VTSP and VTS).
• The Secretary of State argued that the policy shift reflects statutory changes made by Parliament, particularly the Nationality and Borders Act 2022, which narrowed the circumstances in which leave must be granted to VOTs.
• The Secretary of State maintained that the deportation carve-out is lawful, justified by the public interest in deporting foreign criminals and those subject to deportation orders, and that this difference in treatment is not unlawful discrimination under article 14.
• It was also submitted that the references to Part 9 of the Rules in refusal decisions were errors but not material, as the merits were considered under the correct policy.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by considering the correct interpretation of the transitional provisions in the DLP. It recognized that the prior case law, particularly KTT, established that VOTs with outstanding relevant claims before 30 January 2023 were entitled to DL under ECAT article 14(1)(a). However, the court held that the statutory and policy landscape had materially changed following the enactment of the Nationality and Borders Act 2022 and associated policies effective from 30 January 2023.

The court identified two main purposes of the transitional provisions: first, to remedy the unlawful delay in decision-making affecting the KTT cohort by granting DL under the superseded policy ("the XY concession"); second, to exclude from that concession those members of the KTT cohort subject to deportation orders or proceedings.

It held that the exclusion of those subject to deportation proceedings ("the deportation carve-out") was expressly provided for in the DLP and reflected a lawful policy choice consistent with the statutory framework. The court rejected the UT's view that this carve-out was unlawful or incompatible with ECAT or the ECHR. It emphasized that the carve-out does not preclude individual consideration under the new policy, but merely excludes the benefit of the transitional concession.

Regarding article 14 of the ECHR, the court accepted, without deciding, that being subject to a deportation order or proceedings could amount to an "other status" for discrimination purposes. However, it found that the difference in treatment between those in the KTT cohort with and without deportation proceedings was objectively justified by the public interest in deporting foreign criminals and those subject to deportation orders, supported by the detailed statutory scheme governing deportation.

The court also addressed whether VLT was a "foreign criminal" and concluded he was not, based on the disavowal of reliance on the ultra vires 2004 Order. The court found no material error of law in the Secretary of State's reference to Part 9 of the Rules in refusal decisions, as the merits were properly considered under the correct policies.

Ultimately, the court concluded that the UT misinterpreted the transitional provisions by failing to give effect to the explicit exclusion of deportation cases from the XY concession and that the Secretary of State's approach was lawful and consistent with the statutory framework and policies.

Holding and Implications

The court's final decision was to allow the Secretary of State's appeals and dismiss the Respondent's Notice in S's case.

Holding: The transitional provisions in the discretionary leave policy (DLP) are lawful, including the deportation carve-out excluding members of the KTT cohort subject to deportation orders or proceedings from the XY concession. The Upper Tribunal erred in its interpretation of these provisions.

Implications: The decision affirms the Secretary of State's policy shift following the enactment of the Nationality and Borders Act 2022 and clarifies that the transitional concession does not extend to those subject to deportation proceedings. This means that such individuals will be considered under the new legal framework rather than the superseded policy, but they remain entitled to individual consideration of their applications. No new precedent altering the legal framework was established; rather, the court confirmed the lawfulness of the current statutory and policy regime.