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In a judgment today, the High Court has held that the Home Office operated a secret policy until April 2023 to frustrate the right to leave to remain of at least 1,500 people it had itself determined to be confirmed victims of trafficking and modern slavery.

The policy was to secretly block the implementation of a landmark High Court judgment (KTT v SSHD – decided in October 2021) which required the Home Office to grant recognised modern slavery victims leave to remain where they had a pending asylum claim (‘KTT leave’). The High Court referred to Home Office disclosure which revealed the Home Office was concerned that publicly changing the policy to reverse the ruling in KTT would attract criticism from those advocating for protecting victims of modern slavery, including “specifically Sir lain Duncan Smith and Rt Hon Mrs Theresa May”.

Asylum Aid brought the case on behalf of one of its clients, referred to as XY. XY 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 this case started, he remained in immigration limbo.  The High Court found that the secret policy was applied to XY. Twice during that period, the Home Office drafted letters refusing XY modern slavery leave, despite his clear eligibility following the judgment in KTT. Worse, the Home Office hid those refusal decisions from XY, leaving him unable to challenge them.

For survivors of trafficking who are not British nationals, modern slavery leave 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 without leave, survivors are prohibited from working and accessing mainstream benefits (such as universal credit). This in turn can leave survivors vulnerable to abuse, exploitation, and re-trafficking. The government’s disclosure revealed that the Home Office knew that its secret policy had left at least 1,500 survivors without a decision on their entitlement to modern slavery leave. By the date he was finally granted modern slavery leave, XY had spent over five years – including 18 months after the Home Office had accepted that he was a victim of trafficking - unable to work, unable to access the financial support for which he was eligible, and without the feeling of safety vital to his recovery.

This secret policy only came to light as a result of Asylum Aid’s work “diligently” gathering key evidence from its casework and from other practitioners about what was happening. The High Court held that government breached the duty of candour, resulting from an approach of “at almost every stage, revealing as little as possible”, which meant that XY “had laboriously to drag [information] out of the defendant”. Even after the litigation had started, the Home Office failed to disclose the secret policy. 

Alison Pickup, Director of Asylum Aid, said:

“While we are pleased that the High Court has found in our client’s favour, it is shocking that yet again the Home Office has been found to have operated a secret, unpublished policy, and that this time the victims were recognised survivors of trafficking. The deliberate withholding of decisions not only left vulnerable 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 appalling that this happened to those who are most in need of stability, security, and dignity while they waited for the outcome of their protection claim.”

Press contact: Kennith Rosario, kennith.rosario@helenbamber.org

Note to editor:

• In the 2021 case of (KTT) v Secretary of State for the Home Department the Court found that where a person has been recognised as a victim of trafficking under the NRM and has an outstanding asylum claim, which is based on their fear of being re-trafficked, they should be granted leave to remain in the UK until their asylum claim has been finally decided.
• XY is represented by Rebecca Kuehler, Molly Nicolson and Monika Glowacka at Asylum Aid, instructing Chris Buttler KC and Zoe McCallum of Matrix Chambers.
• As well as Asylum Aid’s casework, Wilsons Solicitors, Deighton Pierce Glynn, the Anti-Trafficking and Labour Exploitation Unit (‘ATLEU’) and the Helen Bamber Foundation all provided information from their casework about the Home Office’s approach to KTT cases in support of XY’s claim.
• Asylum Aid is a leading provider of high-quality legal representation to people with complex cases who are seeking asylum in the UK. For over 30 years, Asylum Aid has worked with survivors of trafficking and torture, stateless people, unaccompanied children, and other vulnerable people seeking asylum to help them gain legal protection in the UK. Since 2020, Asylum Aid is part of the Helen Bamber Foundation Group. 
• The Court has ordered that pursuant to CPR r.39.2, in any report of these proceedings, there shall be no publication of the name and address of the Claimant, nor any other particulars likely to lead to their identification. In the proceedings, the Claimant shall be anonymised and referred to as XY.