Article 8 ECHR inside or outside the Rules
You must always consider whether an application under Article 8 may be available to your client under the Immigration Rules. This could be due to their family situation, length of residence in the UK or other Article 8 arguments. We will not cover this in detail here but only issues that arise specifically for victims of trafficking.
You may be able to make Article 8 arguments for your client as part of any other application or in a standalone Article 8 application. If you wish to make these arguments under legal aid and the client does not have a positive reasonable or conclusive grounds decision, you will have to make an ECF application – see Legal Aid section. (If the client has a positive RG or CG then you can make any argument for leave to remain that they need and be funded to do it).
To be successful under Article 8, you need to argue that your client would face ‘significant obstacles to reintegration ‘ within the meaning of para 276ADE Immigration Rules (private life). This should be based on a ‘rounded assessment of all relevant circumstances ‘ – objective and subjective: Bossadi (paragraph 276ADE; suitability; ties)  UKUT 00042 (IAC) at [15-16].
The threshold cannot be so high as to herald any exceptionality test as that would be incompatible with Article 8 ECHR as Counsel for the SSHD conceded, and the Court of Appeal accepted, in MF (Nigeria)  1 WLR 544.
It is important to always remember the phrase ‘significant obstacles to reintegration’ when instructing experts, especially medico-legal experts as you can include this in instructions that are otherwise going to issues about a protection claim. You may be able to argue that, for example, your client’s health; lack of support; lack of access to the job market, etc. may provide significant obstacles to their reintegration and therefore their removal could breach Article 8.
You would need to argue that removal would constitute a disproportionate interference with Article 8 ECHR to be successful outside of the Immigration Rules.
Article 4 ECHR
It is worth arguing a potential breach of Article 4 ECHR for many victims of modern slavery. Why has there been an Article 4 breach? For domestic workers, this can occur by the state not upholding its duties to the client to protect them against exploitation at the entry clearance post, i.e. if the state has not given the worker information about their employment rights in the UK, so they would know what standards of treatment to expect and be able to identify when they were being exploited.
There can also be breaches that have occurred following referral into the NRM or as soon as the client came into contact with any state body that did not take action or appropriate action to identify the client and refer them for help, preventing further harm and re-exploitation. You can argue the state has a reparative duty to victims for the harm they have suffered because of their failures.
Some cases to be aware of:
- Rantsev v Cyprus and Russia (Application no. 25965/04) (Obligations of states towards victims of trafficking).
- EK Tanzania (Article 4 ECHR: Anti-Trafficking Convention) Tanzania  UKUT 00313 (IAC) (Breach at entry clearance post, need to provide reparation for breaches to a victim in form of leave). This was an unusual case on its facts and the Home Office tries to argue that it is exceptional and other cases do not reach the threshold of harm suffered by the appellant. However, it is useful to see how the Article 4 argument was put.
- MS (Trafficking – Tribunal’s Powers – Art. 4 ECHR) Pakistan  UKUT 00226 (IAC) (23 March 2016) (now subject to appeal to the Supreme Court after this Court of Appeal decision) – Asylum and human rights appeal in the Upper Tribunal discussing jurisdiction in relation to trafficking identification decisions and the breach of Article 4 ECHR.
The Home Office does not like to lose on Article 4 grounds, and a downside to success on this point in the Tribunal may be an onward appeal.
Breaches argued in relation to Article 4 ECHR can be used as factors in the assessment about whether breaches of rights under Article 8 ECHR were proportionate – so it can be worth raising the argument even if the decision-maker prefers or finds it simpler to make findings under Article 8.
If you raise a potential Article 4 breach in representations or an appeal, this could affect your client if they want to make a compensation claim based on an Article 4 ECHR at a later date but are out of time for doing so, yet there has been a long delay between raising it in the immigration case and taking action on a compensation claim. You can guard against this by making a referral for the client to get compensation case as soon as possible as a matter of course.
There is increasing litigation around Article 4 in different contexts, not just immigration, so keep an eye on how case law develops.