Court of Appeal decision on Trafficking Convention

The Court of Appeal has handed down its judgment in EOG and KTT v Secretary of State for the Home Department [2022] EWCA Civ 307. Emily Wilsdon acted for the Secretary of State in KTT, led by Robin Tam QC, before both the High Court and Court of Appeal. The linked cases were heard over three days in February 2022.

Both cases concerned whether the Secretary of State's policy on grants of leave to victims of trafficking was intended to and did in fact comply with the requirements of the Council of Europe Convention on Action against Trafficking in Human Beings ('ECAT') – a treaty which has been ratified by the UK but not incorporated into domestic law.

In EOG's case, the Court of Appeal found that Article 10(2) of ECAT ("that person shall not be removed from its territory until the identification … has been completed …  and shall likewise ensure that that person receives the assistance provided for in Article 12, paragraphs 1 and 2") did not require the grant of leave to individuals during the period between a decision that they were 'potential victim of trafficking' (i.e. that there were reasonable grounds to believe that she or he was a victim of trafficking) and the final ('conclusive grounds') decision.

In KTT's case, she had an asylum claim which related to her situation as a victim of trafficking because it was based on the risk of her being re-trafficked if she were returned to Vietnam. She said it was necessary for her to stay in the UK in order to pursue that claim. The Court of Appeal found that this situation fell within Article 14(1)(a) of ECAT ("Each Party shall issue a renewable residence permit to victims … [where] the competent authority considers that their stay is necessary owing to their personal situation"). The Court found that the Secretary of State's policy intended to but did not properly reflect this requirement of ECAT.

The full Judgment can be accessed here.