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In the High Court this week, Asylum Aid argued, on behalf of one of its clients (referred to as XY), that for 15 months until April 2023, the Home Office operated a secret policy to frustrate the right to leave to remain of at least 1,600 people it had itself determined are confirmed victims of trafficking and modern slavery.

The secret policy, approved by the then-Home Secretary, was to block the implementation of a landmark High Court judgment (KTT v SSHD) which required the Home Office to grant recognised modern slavery victims leave to remain where they had a pending asylum claim (‘KTT leave’). The Claimant’s case is that the government’s disclosure revealed that the Home Office maintained a published policy that KTT leave would be granted so to dodge criticism from those advocating for protecting victims of modern slavery, including Sir lain Duncan Smith MP and Theresa May MP. However, according to the disclosed documents, the Home Office instead issued secret instructions that its officials should not grant KTT leave. In order to avoid legal challenges, victims were not to be told that their cases had been refused to “mitigate the risk of legal challenges”.  The secret policy impeded victims’ right of access to court and left them stuck in the “hostile environment”, barred from working and access to mainstream benefits. 

Asylum Aid’s client is a 22-year-old Albanian national who, aged 16, was enslaved in Albania by a gang who beat his mother, kidnapped him from the family home, and forced him to sell drugs for them. As a result of the trauma of being trafficked, he suffers from anxiety and depressive disorder and symptoms of Post-Traumatic Stress Disorder, for which he takes medication and is in receipt of psychological therapy. He claimed asylum on arrival in the UK in 2018 but, over four years later, when he started this case, his claim was still unresolved. When he was finally granted leave, he had spent over five years – including 18 months after the Home Office accepted that he was a victim of trafficking - unable to work, unable to access the financial support he should have been eligible for, and without the feeling of safety vital to his recovery. The secret policy was applied to him. Twice during that period, a decision to refuse him leave as a victim of trafficking was made but this was not communicated to him at the time, depriving him of the ability to bring a legal challenge to it.

XY said:

“This delay has made me feel hopeless and powerless. I am unable to move on and am stuck in the memories of what has happened to me. […] The main reason I want to be granted leave is so I can feel safe, and know that I am not going to be forced to leave the UK and return to Albania. At the moment, I feel like I am living on a cliff-edge and the support I have around me in the UK might all be taken away. I do not know how I would cope if that happens, I cannot imagine it.”

From October 2021 to December 2022, over 3,390 non-UK nationals, like our client, were conclusively recognised as victims of trafficking under the National Referral Mechanism (NRM) - the framework designed to identify and protect victims of trafficking and modern slavery. For these people, immigration status is a key concern. Without leave to remain, survivors of trafficking experience ongoing fear and anxiety about the possibility of their removal from the country or being held in immigration detention. This deters many from coming forward to seek help. A lack of a secure immigration status prevents engagement with the police, support services and therapeutic support. It can also result in poverty, destitution, and isolation as it prevents survivors from working and accessing benefits. This in turn can leave survivors vulnerable to abuse, exploitation, and re-trafficking. By the time the secret policy was abandoned, it was too late for many of the hundreds of victims subjected to it to benefit as they no longer fit the relevant criteria.

Alison Pickup, Director of Asylum Aid, said:

“It is shocking that the Secretary of State has yet again instructed his caseworkers to follow a secret, unpublished policy to avoid the risk of litigation. The deliberate withholding of decisions not only left people like our client in limbo but also sought to prevent anyone from finding out about the unpublished policy, and therefore being able to challenge it. It is particularly appalling that this happened in the context of the clear need for give recognised victims of trafficking some stability, security, and dignity while they waited for the outcome of their protection claim. The adoption of a secret policy to avoid political embarrassment is unacceptable in a democracy governed by the Rule of Law.”