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Discretionary leave

In this section, we look at grants of discretionary leave to remain (DL) in the UK  for victims of trafficking.

It is important to understand that a positive CG decision does not automatically entitle an individual to stay in the UK. As far as the Home Office is concerned, most victims of trafficking who have no leave or other right to live in the UK will be expected to leave the UK once they have recevied their CG decision.  Unless it can be shown otherwise, that is the point where the UK government will consider itself to have met its Convention duties to the victim.

However, victims of trafficking with a positive CG may be entitled to a grant of discretionary leave to remain in the UK, usually for a short and limited period of time. This is sometimes referred to as a residence permit, using language from the Council of Europe Convention on Action Against Trafficking in Human Beings (‘ECAT‘). In the UK it is called ‘discretionary leave’ as it is granted under a policy that is outside of the Immigration Rules. The policy is set out solely in guidance to Home Office caseworkers.

Recent statistics show that only a small minority, about 12%, will get DL. But well argued and evidenced applications can succeed.

The law

An applicant for DL should rely on ECAT to support their application. While the government’s DL policy is based on ECAT, ATELU believes it applies its principles in a very narrow way. Article 14 of ECAT states:

‘Residence permit

    1. Each Party shall issue a renewable residence permit to victims, in one or other of the two following situations or in both: a) the competent authority considers that their stay is necessary owing to their personal situation; b) the competent authority considers that their stay is necessary for the purpose of their cooperation with the competent authorities in investigation or criminal proceedings.
    2. The residence permit for child victims, when legally necessary, shall be issued in accordance with the best interests of the child and, where appropriate, renewed under the same conditions.
    3.  The non-renewal or withdrawal of a residence permit is subject to the conditions provided for by the internal law of the Party.
    4.  If a victim submits an application for another kind of residence permit, the Party concerned shall take into account that he or she holds, or has held, a residence permit in conformity with paragraph 1.
    5. Having regard to the obligations of Parties to which Article 40 of this Convention refers, each Party shall ensure that granting of a permit according to this provision shall be without prejudice to the right to seek and enjoy asylum.’

The explanatory report to ECAT states at para 182-186:

‘182. The two requirements laid down in Article 14, paragraph 1, for issue of a residence permit are that either the victim’s stay be ‘necessary owing to their personal situation ‘ or that it be necessary ‘for the purpose of their cooperation with the competent authorities in investigation or criminal proceedings ‘. The aim of these requirements is to allow Parties to choose between granting a residence permit in exchange for cooperation with the law enforcement authorities and granting a residence permit on account of the victim’s needs, or indeed to adopt both simultaneously.
183. Thus, for the victim to be granted a residence permit, and depending on the approach the Party adopts, either the victim’s personal circumstances must be such that it would be unreasonable to compel them to leave the national territory, or there has to be an investigation or prosecution with the victim co-operating with the authorities. Parties likewise have the possibility of issuing residence permits in both situations.
184. The personal situation requirement takes in a range of situations, depending on whether it is the victim’s safety, state of health, family situation or some other factor which has to be taken into account.
185. The requirement of the cooperation with the competent authorities has been introduced in order to take into account that victims are deterred from contacting the national authorities by fear of being immediately sent back to their country of origin as illegal entrants to the country of exploitation.
186. In the case of children, the child’s best interests take precedence over the above two requirements: the Convention provides that residence permits for child victims are to be ‘issued in accordance with the best interests of the child and, where appropriate, renewed under the same conditions ‘ (Article 14, paragraph 2). The words ‘when legally necessary ‘ have been introduced in order to take into account the fact that certain States do not require for children a residence permit.’

In the case of PK (Ghana), the Court of Appeal decided  that the government’s DL policy was unlawful in that it misinterpreted ECAT and the explanatory report in importing a requirement for circumstances to be compelling, in order for DL to be granted, rather than the correct test of it being necessary in the individual’s personal circumstances. The government has now introduced a new policy on DL, but it has flaws, particularly in the way it is being implemented by caseworkers.

Where a decision on discretionary leave fails to be made in line with the spirit of ECAT, this can be challenged, either as a failure of the decision-maker to carry out the correct assessment as provided for in the Home Office’s guidance or as a failure to follow the approach required by ECAT. For more on challenging decisions, see below.

When should DL be granted?

The guidance explains that:

‘A person will not qualify for discretionary leave (DL) solely because they have been identified as a victim of modern slavery – there must be reasons based on their individual circumstances to justify a grant of DL where they do not qualify for other leave such as asylum or humanitarian protection….

Discretionary leave may be considered where a Competent Authority has made a positive conclusive grounds decision that an individual is a victim of modern slavery they are not eligible for any other form of leave (such as asylum or humanitarian protection) and either:

• leave is necessary owing to personal circumstances
• leave is necessary to pursue compensation
• victims who are helping police with their enquiries’

We look at each of these three categories below.

The victim’s personal circumstances

Under ECAT, this is a broad test and any factor relevant to the victim can be taken into account.

In practice, the Home Office is more likely to consider that it is necessary for you to remain here due to your personal circumstances if you have a medical condition, particularly where it is currently being treated.

The Home Office guidance gives some recognition to the need for an individualised assessment, stating at page 7:

‘When deciding whether a grant of leave is necessary under this criterion an individualised human rights and children safeguarding legislation-based approach should be adopted. The aim should be to protect and assist the victim and to safeguard their human rights. In seeking to do so decision makers should primarily assess whether a grant of leave to a recognised victim is necessary for the UK to meet its objective under the Trafficking Convention – to provide protection and assistance to that victim, owing to their personal situation.’

On health needs, the policy is not generous. The Home Office will consider not only the need for treatment but whether it is necessary for the treatment to be provided in the UK. The guidance instructs decision-makers at page 8:

‘In terms of needing to stay in the UK to have such treatment you may wish to consider that the UK’s international obligations do not extend to a requirement that treatment must be provided by specialists in trafficking, or that it be targeted towards one aspect of an individual’s needs (the consequences of trafficking) as opposed to his or her overall psychological needs as set out in the case of EM v SSHD. In brief, the support duty calls for the provision of support, not that the person is supported until they achieve full physical, psychological or social recovery. Leave granted to allow for medical treatment should normally be granted for the duration of the course of treatment or up to 30 months, whichever is shorter.’

This approach is contrary to the test set out in the Convention on Action Against Trafficking in Human Beings. It is also wrong for the Home Office to apply the test outlined in the case of EM. EM was concerned with the support duty owed to potential victims of modern slavery in detention in the UK during their recovery and reflection period following the RG decision, and not to the right to a residence permit after a CG decision.

It will be easier to argue for DL where the person is actually undergoing a course of treatment, but that does not preclude a grant of leave to remain if treatment has not yet begun. Where the person is on a waiting list (e.g. for NHS mental health services), and they are unlikely to be able to access such treatment in their own country, the argument will be that such treatment is necessary, and therefore the person must be granted leave to cover the waiting period as well as the treatment.

The Home Office has also in some cases recognised that victims of modern slavery who are not able to begin treatment for medical conditions while they feel unsafe and lack status in the UK merit grants of DL in order for treatment to be begin.

The Home Office also looks at a person’s protection needs in their country of origin. The guidance says at pages 7-8:

‘It is not possible to cover all the circumstances in which DL may be appropriate because this depends on the totality of evidence available in individual cases. However, considerations when deciding if DL is appropriate might include (the list is not intended to be exhaustive):

    • Whether the person may be eligible for a more advantageous form of leave, for instance, asylum or humanitarian protection.
    • Whether leave is necessary because there is a significant and real risk in light of objective evidence that the person may be re-trafficked or become a victim of modern slavery again – in such cases consideration should also be given as to whether the risk is greater in the UK or in the person’s home country.
    • Whether, if returned home, the person would face harm or ill-treatment from those who first brought them to the UK, or exploited them in their home country.
    • Whether on the objective information and evidence in a particular case the receiving state have the willingness and ability to provide through its legal system a reasonable level of protection to the person, if returned to their care (it would be rare for an individual to be able to rely on there being an absence of sufficient protection for victims of modern slavery in an EU member state).
    • Whether DL is necessary for the person to seek compensation through the Courts or is assisting the police with a criminal investigation or prosecution. ‘

There is, arguably, an overemphasis on country of origin factors in this list of examples. And in practice, Home Office caseworkers often assert that protection is available in the person’s home country, and use the guidance as a reason to refuse applications, predominantly on the basis that the victim will not face re-trafficking in their country of origin and will be able to access adequate medical treatment there. Other relevant factors or needs are often dismissed or simply ignored.

This approach is incompatible with the Convention. The Court of Appeal in PK (Ghana) emphasized at para 50 that:

‘Article 14(1)(a) of the Convention requires the identification of the individual’s relevant personal circumstances, and then an assessment by the competent authority of whether, as a result of those circumstances and in pursuance of the objectives of the Convention, it is necessary to allow that person to remain in the United Kingdom. … the only relevant objective of the Convention is the protection and assistance of victims of trafficking. As I have described, this is one of the primary objectives of the Convention, as expressed in the Preamble and Article 1… Whether the Appellant’s personal circumstances were such as to make it necessary for him to stay in the United Kingdom could only be assessed by reference to that objective ‘. [our emphasis]

The Court also highlighted the important distinction between discretionary leave for victims and other types of immigration applications. With discretionary leave the assessment is whether the victim’s stay is necessary, not whether their removal will result in a breach of their human rights or rights under the Refugee Convention.

Where there is a real risk that the person will not be protected, these are more properly dealt with by claiming asylum, or by making an Article 3 application on medical grounds, depending on the circumstances. Risk of re-trafficking should though be raised as part of an application for DL if the person cannot or does not want to claim asylum.

It is also a good idea to pre-empt the Home Office by considering the US State Department Trafficking in Persons mot recent report for the victim’s country of origin (as the Home Office will look at this). Highlight anything supportive there to show why there are protection gaps in the home country, or look for other evidence about lack of access to appropriate medical treatment.

You should also put information forward to demonstrate a victim’s needs here and now in the UK, including any risk of re-exploitation they face here if these needs are not met because DL is not granted.

Another recent trend is for Home Office caseworkers to grant DL due to a risk of the person being re-trafficked and, in the same decision, reject their asylum claim on the basis of sufficiency of protection from re-trafficking being available in their home country. These decisions are very appealable.

Compensation

DL should also be granted where the person needs to be in the UK to pursue a compensation claim. They will need to explain why they need to be in the UK to do this.

The guidance envisages that a compensation claim will be against the perpetrator(s) of the trafficking and/or exploitation. However, there may also be claims under the Criminal Injuries Compensation Authority (CICA), or against the state, e.g. in an EK (Tanzania) or TDT-type case. For more on compensation claims for victims of trafficking generally, go here.

When making a decision on DL in relation to the need to stay in the UK to pursue a compensation claim, the Home Office will consider:

  • The type of compensation being sought
  • The grounds of the claim
  • The likelihood of the claim succeeding – in reference to the claims accepted or rejected by the Competent Authority
  • The likely length of the claim
  • Whether it is necessary for the person to be physically in the UK for the duration of their claim or can be returned for the hearing.

The guidance also says a grant of DL will normally only be necessary where it would be unreasonable for the victim to pursue that claim from outside the UK.

Get a letter from the person’s compensation lawyer giving details of the proceedings, the stage they’re at, the merits of the application and the client’s need to be here to pursue them. There will be many reasons why they will need to be in the UK to pursue the claim; relating to funding considerations, the need to provide ongoing instructions to the lawyer, and attending hearings. Think about the circumstances they may find themselves in when they get home, and the practical difficulties they will face bringing or continuing a claim in the UK.

For those suing the state, the judgment in Quaquah [2000] INLR 196 provides support for an ‘equality of arms’ argument. Both Quaquah and Kiarie and Byndloss consider the practical difficulties of bringing or continuing proceedings from overseas.

Victims who are helping police with their enquiries

The police may request leave to be granted or extended on this basis, but a police officer involved in a case may not know they can do this or how to do so. They can simply email the request to the Home Office decision-maker or NRM team. Where applicable, the police should be asked to do this as soon as possible, confirming they need the client in the UK for the progress of an investigation or prosecution.

A victim or their advisor/lawyer can also ask for a grant of leave themselves on this basis if they are assisting the police. The Home Office was reminded of this in R (on the application of Galdikas and others) v SSHD [2016] EWHC 942 (Admin) at para 76:

‘My task is to ascertain whether this regime achieves the results which Article 11 of the Directive and Article 12 of ECAT requires to be achieved. I have come to the conclusion that even after taking account of the right of the Government to decide on ‘the choice of the form and method’ to satisfy the provisions of Article 11 of the Directive and Article 12 of ECAT as well as Mr. Blundell’s submissions, the present policy of not allowing the victims or their legal representatives to request DLR on the grounds of agreeing to assist the police with their enquiries means that the desired result in Article 11 is not achieved in the light of the four factors to which I have just referred. ‘

This is now in the guidance, and the Home Office says it is the responsibility of the applicant to provide detailed information to the Home Office so that the relevant police officers can be contacted to confirm the person’s involvement with the investigation or trial.

The Home Office says that if the Competent Authority, despite having taken reasonable steps, is unable to establish that the victim is helping the police with enquiries and the individual does not provide further information on request, the application may be refused unless the person can demonstrate they fall under other DL criteria.

Although Home Office policy doesn’t mention it, assistance and support may also be needed for an appropriate time after criminal proceedings have concluded, for example, if a victim is still dealing with the memories that have come up as part of their witness evidence. EU Directive 2011/36/EU  (Preamble para 18) states:

‘It is necessary for victims of trafficking in human beings to be able to exercise their rights effectively. Therefore, assistance and support should be available to them before, during and for an appropriate time after criminal proceedings … Where necessary, for example if medical treatment is ongoing due to the severe physical or psychological consequences of the crime, or if the victim’s safety is at risk due to the victim’s statements in those criminal proceedings.’

EEA nationals and discretionary leave (DL)

See the section on European Union Nationals section for more on the rights of EU and EEA nationals to DL.

Children and DL

In regard to decisions being made in respect of children, whether victims themselves or the child of a victim, the guidance accepts that the child’s best interests should be a primary consideration (although not necessarily the only consideration) and one that can affect the duration of leave granted. On duration, the guidance states at p.16:

‘Where the child or their parent meets the criteria for a grant of DL based on modern slavery, consideration should be given to factors such as the length of residence in the UK, where the child was born, and the strength of the evidence to suggest that the child’s life would be adversely affected by a grant of limited leave rather than indefinite leave to remain (ILR). This does not alter the expectation that in most cases a standard period of up to 30 months DL will be appropriate.‘

Where the child is granted a longer period of leave, a separate case will need to be made that the parent should be granted leave of the same (extended) duration.

Timing of the initial decision on DL

No decision on granting DL will be made before the CG decision. When the NRM makes a positive conclusive grounds decision, they should automatically consider a grant of DL. However, this process may be delayed in cases where the person has also claimed asylum. Following the case of R (on the application of JP) v SSHD [2019] EWHC 3346 (Admin), the Home Office’s policy to delay making decisions on discretionary leave until a decision is made on the asylum claim has been found to be unlawful. The Home Office should now not delay making a decision regarding DL in these circumstances and any delay that occurs should be challenged.

Applying for DL

The main heads of argument will be that the client needs to stay for one or more of the following reasons:

  • They are still required in the UK to assist a police investigation or to participate in criminal proceedings
  • They need assistance and support for an appropriate time after criminal proceedings have been concluded (if they have been a witness or involved in an investigation)
  • They have a compensation claim against their traffickers (we would also argue that they should be entitled to remain if they have a compensation claim against the state that is connected to their trafficking)
  • It is necessary because of their personal circumstances e.g the need to access medical treatment, or time to conclude their studies (which may go to their ability to support themselves back home)
  • If they are a child because it is in their best interests
  • They cannot be returned to their country with safety and dignity at present
  • Their rights under Articles 4 and 8 of the European Convention on Human Rights are engaged as victims of modern slavery
How to apply?

When a person is a non-UK or non-EEA national and receives a positive CG decision, they will be automatically considered for a grant of DL at the conclusion of the NRM process.

If you are an EEA national you will need to tell the Home Office while you are still in the NRM that you want to be considered for a grant of discretionary leave to remain, so this can be considered as soon as a positive CG is made. You can do this by sending an email to the NRM team.

Representations for DL

Following a positive reasonable grounds decision, the potential victim of trafficking can make representations (i.e. write a letter or email) to the NRM in support of a positive CG decision. As well as arguing for a positive CG decision, a case for DL being granted can be made within these representations. A case that DL should be granted can be made to the NRM at any stage prior to the CG decision being made.

Evidence from support workers

Evidence provided by trafficking support workers is very important to the decision-making process for granting a residence permit. Their opinions, gained from their personal knowledge of working closely with the victim, should be given weight by the Home Office. They should be asked for a supporting letter that gives their opinions about a person’s vulnerbaility, needs and any risk of re-exploitation they might face if they are not granted the safety net of a period of discretionary leave to remain, explaining their expertise working with the client group and that of their organisation, and the length of time they have worked with this individual.

Other evidence

This depends on the victim’s needs. The more, the better. This might include a letter or report from their therapist saying that they are receiving help (or need to receive help), how long it will carry on for and why they think help is needed. If they feel able, they can say why they think the medical condition is connected to the trafficking experience as this will also assist in the identification process.

There may be a good reason why the therapy cannot begin until the person has an adequate grant of leave, so that will need to be explained, as will the implications of the person returning to their country without having had such treatment.

A medical practitioner should always be asked to explain their qualifications and experience and how they have formed their opinion, i.e. if it has been formed based on their clinical experience working with the client and a similar patient group or through the application of clinical tests, rather than by just adopting wholesale what the client has told them.

The victim may need to submit evidence from the police of their investigation or of a pending trial, and the person’s involvement in it, or from their compensation lawyer giving details of the proceedings, the stage they’re at, the merits of the application, and the client’s need to be here to pursue them.

What to put in a supporting letter

Of course, the exact content depends on the nature of the case, but a support letter should cover the following issues:

Letter about personal circumstances from a support organisation

This is a very broad category so these questions are also very broad:

  • Confirm who you are, your experience and that of your organisation in working with victims of modern slavery (including details of your qualifications, the recognition of your/your organisation’s opinion nationally/internationally, e.g. any submissions given to parliament, high profile awards won, etc.), how long you have been working with this client, what you do together.
  • Confirm whether your view is formed based on your professional opinion and experience of you and your organisation in working with this client group, drawing on comparative experience of other clients.
  • How long have you been working with the client, how often do you see them and what do you do together.
  • Has the client faced any barriers to finding stable work, e.g. language problems, mental health, involvement in a compensation or criminal case, local employment conditions
  • Has the client had any problems with housing or benefits, and how did this affect them? Do they need the safety net of access to public funds that would come with a grant of leave?
  • If they have been involved in a criminal case, how did this affect them? (including if it has finished – are they still feeling the effects?).
  • Confirmation of their current support needs, including any health issues and any detail you can give about the support networks and relationships that you know the client has or can access in time of need at present.
  • If you feel able to comment, do you think the client’s needs/health issues are connected to their trafficking experience and why? (with reference to this client’s presentation and that of other clients you have worked with).
  • Do you think this client is still vulnerable? Do you think the client will face any risk of re-exploitation if leave is not granted, either in the UK or overseas?
  • If the client is only given a short period of leave, how would this affect them? For example, would they face any practical or mental health problems if they had to apply for an extension again within a short space of time (being without their original biometric residence permit)? Do you have a view on the length of leave that would be best for the recovery needs of the client, for example, do you think anything less than the maximum grant of 2½ years would be damaging to the client’s recovery, wellbeing and ability to engage with services?
Letter from compensation lawyer
  • Confirm who you are and what you are doing for the client
  • Confirm the background to the compensation case, if it is linked to the client’s trafficking, what stage it has reached
  • What is the likely value of the case
  • How long will it take for the case to conclude from now until judgment is given
  • Would you face any barriers to representing the client if they were no longer in this country and why (for example, in taking instructions or going through documents with them), or in securing/maintaining funding.

Submitting the application online (first time application or extension of DL)

A person can also apply for DL, or an extension of DL, by making an application to the Home Office using an online form at any time after the positive CG decision is made, if they have not been granted DL (and cannot challenge the failure to grant).

The form is usually FLR(HRO), but use FLR(DL) if the person was refused asylum and at the same time given discretionary leave to remain and now wishes to extend it. If the victim was not given their DL at the same time as the asylum refusal, they should use form FLR(HRO).

Legal aid will be available for the application if the person meets the means test.

The application will be exempt from Home Office and Immigration Health Surcharges until the person has had 30 months of DL as a victim of trafficking,  after which an application for further leave will be chargeable (but still with no Immigration Health Surcharge (IHS) to pay). Where necessary, the person can apply for a fee waiver.

Where the Home Office suggest a fee is payable before the person has had their first 30 months of DL, rely on the fee regulations rather then Home Office guidance. The Immigration and Nationality (Fees) Regulations 2018, Schedule 2, state:

9.10 Applications for discretionary leave by an individual with a positive conclusive grounds decision    
9.10.1 No fee is payable in respect of an application or request for the first grant of limited discretionary leave for a Trafficking Convention reason, where the individual has received a positive conclusive grounds decision. Fee 6.1.1
9.10.2 No fee is payable in respect of an application or request for a further grant of limited discretionary leave for a Trafficking Convention reason, where the individual has received a positive conclusive grounds decision and has not yet accrued thirty months limited discretionary leave for a Trafficking Convention reason. Fee 6.1.1
9.10.3 No fee is payable in respect of an application or request for a further grant of limited discretionary leave for a Trafficking Convention reason, where an individual has received a positive conclusive grounds decision, where:

(a) 9.10.2 does not apply because the individual has accrued thirty months or more limited discretionary leave for a Trafficking Convention reason; and

(b) at the time of making the application or request the applicant appears to the Secretary of State to be destitute.

 

The online FLR(HRO) form has no provision that allows you to flag up that an application  from a victim of modern slavery is fee exempt. This means you can fill in all the details for the client, get to the end and be faced with a fee to pay.

There seems to be two options in these circumstances, until the Home Office corrects the online form. You can apply for a fee waiver before making the FLR(HRO) application and state simply in that application (and a cover letter to go with anything physical that is submitted) that you are not completing all the requested information because the victim is fee exempt. Or you can select the option at the start of the FLR(HRO) form for ‘Medical grounds or ill health‘. This will automatically fee exempt the client. Then explain in the form (and in your cover letter ) that this is not actually a medical case and the wrong box has been ticked because that is the only way of accessing the fee exemption.

The Immigration Law Practitioners’ Association has raised this issue with the Home Office but it has still not been fixed at the time of writing.

Length of grant, rights and extensions

The period of discretionary leave granted will depend on the facts of the case and the evidence the applicant has submitted about how long they need to stay here. Grants can be made for as little as a couple of months, but very rarely for more than 30 months (two and a half years). Applicants should always ask for the maximum they think they need and explain why this is needed in their personal situation.

If someone is writing a support letter, they can be asked to explain if they support the maximum grant of leave and why granting less would be detrimental to the victim. If the Home Office then grants less than 30 months, there may be a challenge if they have not taken into account the particular circumstances of the victim and the evidence that was put forward to them.

It is also important to remember that the Home Office has a duty to take account of all relevant considerations so that, exceptionally, it may be approprite to grant a period of leave of more than 30 months if such a case is properly reasoned and evidenced.

If the Home Office has mishandled the case, this is relevant to the length of leave to be granted. See e.g: R (on the application of FT) v Secretary of State for the Home Department (“rolling review”; challenging leave granted) [2017] UKUT 00331(IAC)

A person with DL will be able to claim benefits and work.

The victim can apply to extend the DL if necessary and can get legal aid to help with an extension application (see below).

DL under this route does not automatically lead to settlement, though grants of DL may be relevant to applications under the long residence and private life provisions in the Immigration Rules.

Challenging refusals

If an individual is refused discretionary leave, they should read the reasons in the decision letter carefully. If they want to challenge the decision , they must usually do this by a process called judicial review (JR) within three months of the date of the decision.

If there is no merit in doing so, or it is just not practicable in the client’s circumstances, but a better case can be made, a fresh application can be submitted. That may be possible if the circumstances have changed since the decision to refuse DL, or there is new and better evidence that a grant of DL is necessary. It might be, for example, that the person has now begun compensation proceedings, or counselling such as to bring the person more clearly within the provisions of the Convention and/or DL guidance, or there is better evidence of the circumstances previously relied on.

A right of appeal?

The Home Office’s DL policy clearly identifies that a decision on DL for victims of trafficking concerns the safeguarding of human rights. An application is made on form FLR(HRO) – i.e. it is a human-rights based application (although the same human rights arguments also come into play when you are applying on form FLR(DL)).

A refusal of DL may arguably breach a person’s human rights; usually Articles 3, 4 or 8 of the European Convention of Human Rights, such that the person could lodge an appeal to the First-tier Tribunal (IAC) against the decision. This might be easier if human rights were actually argued in the application or representations for DL, but if on the facts of the case human rights are only implied rather than expressed, it can still be argued that a refusal should attract a right of appeal. In such circumstances, the person will need good legal representation to secure their right of appeal. The extent to which a trafficking decision may directly engage Article 4 rights is currently being considered by he UKSC in the case of MS (Pakistan), currently awaiting judgment.

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