In this section we look at grants of temporary permission to stay for victims of trafficking or slavery (VOTs) in the UK.
VOTs who receive a positive conclusive grounds decision (CG) will be considered for temporary permission to stay under the Immigration Rules.
Background to the rules
The Appendix Temporary Permission to Stay for Victims of Trafficking or Slavery came into force on 30 January 2023, having been introduced in the Statement of Changes to the Immigration Rules: HC719, 18 October 2022.
The Appendix relates to Section 65 in Part 5 of the Nationality and Borders Act 2022 (NABA) which provides for leave to remain for VOTs.
Section 65 NABA came into force on 30 January 2023 (by virtue of the Nationality and Borders Act 2022 (Commencement No. 4 and Transitional Provision) Regulations 2023, s3(f)).
Section 65 NABA applies if a positive conclusive grounds decision is made in respect of a person
(a) who is not a British citizen and
(b) does not have leave to remain in the UK.
The relevant guidance is:
The new rules provide a route for temporary permission to stay for VOTs and their children, who are in the UK.
A VOT with a positive conclusive grounds decision and no existing right to remain in the UK is automatically considered for permission to stay (see the Introduction to the Appendix on Temporary Permission; VTS Guidance; Statutory Guidance).
The suitability and eligibility requirements of the Appendix apply to all new considerations of leave (initial, extensions and reconsiderations) made after 30 January 2023.
VTS leave does not provide a route to settlement, although longer periods of stay might be considered under the VTS Guidance.
Where a survivor already has Leave to Remain: Validity requirements
VTS 1.1 of the Appendix provides the following validity requirements:
(a) the applicant must have been served with a positive conclusive grounds decision.
(b) the applicant must have permission to stay as a victim of human trafficking or slavery, or as a child of a victim of human trafficking or slavery; and
c) the applicant must apply on the specified form on the GOV. UK website: FLR (HRO); and
(d) any required fee must have been paid; and
(e) the applicant must be in the UK on the date of application.
All survivors: Eligibility requirements (see section 65(2) NABA)
Under VTS 3.1 of the Appendix, leave is granted where it is necessary for the purpose of:
(a) assisting the person in their recovery from any physical or psychological harm arising from the relevant exploitation; or
(b) enabling the person to seek compensation in respect of the relevant exploitation, or
(c) enabling the person to co-operate with a public authority in connection with an investigation or criminal proceedings in respect of the relevant exploitation.
Leave must also be considered where the applicant is a child or there is a child dependent; best interests must be considered as well (see the VTS Guidance).
All survivors: Suitability requirements (see section 65(2) NABA)
VTS 2.1 of the Appendix provides that the applicant must not fall for refusal as a threat to public order, or as a person who has claimed to be a victim of human trafficking or slavery in bad faith (as per Section 63 NABA).
Article 14 ECAT
Article 14 of the Council of Europe Convention on Action against Trafficking in Human Beings states:
- 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.
- 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.
- The non-renewal or withdrawal of a residence permit is subject to the conditions provided for by the internal law of the Party.
- 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.
- 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:
‘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.’
NABA and the Appendix are not aligned with Art 14(1)(a) ECAT.
The Explanatory Notes to S65 of NABA state at §641: S65(2)(a) “clarifies the obligation in Article 14(1)(a) of ECAT which provides for a grant of leave where it is “necessary owing to their personal situation…”
The Home Office position in the VTS Guidance is: “ECAT is clear that under Article 14 signatory states can elect whether to grant a residence permit in the circumstances described in 14(1)(a) or 14(1)(b) or in both”.
The VTS Guidance makes clear a change in policy: leave will be granted under s65(2)(c), which mirrors Article 14(1)(b) of ECAT or s65 but “References in this guidance to when VTS leave may be granted for reasons beyond those in 65(2)(c) of the NAB Act are not intended to fulfil A14(1)(a) but is a matter of domestic policy only as set out in s65 of the NAB Act”.
The Rules represent a change from the discretionary leave policy (published for Home Office staff on 10 December 2021) which provided that such leave may be considered where: “leave is necessary owing to personal circumstances”, in keeping with Article 14 (1)(a) of ECAT.
The policy read: “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”.
Section 65 NABA and VTS3.1 of the Appendix do not allow for leave to be granted owing to a survivor’s personal situation in circumstances other than assisting the person in their recovery from any physical or psychological harm arising from the relevant exploitation e.g. where they have an asylum claim pending, or other health needs not related to their exploitation.
The VTS Guidance reads: “Any VTS decision made after 30 January 2023 will not need to have a risk of re- trafficking assessment carried out. You will not need to schedule fresh cases behind asylum decisions”.
However, this is inconsistent with the application of the VTS Guidance in respect of children where it is acknowledged that the statutory duty requires ‘identification of those that might be at risk from harm‘ (pg7).
Arguing a risk of re-trafficking is likely to still be needed in many cases when dealing with assistance to recover from physical or psychological harm.
Important sections of the VTS
VTS 3.1 (a) assisting the person in their recovery from any physical or psychological harm arising from the relevant exploitation
“assisting the person in their recovery” is defined under VTS 3.2 (b) of the Appendix as “the applicant requires support either through the National Referral Mechanism or other services to assist in their recovery from their exploitation (this support does not need to accomplish recovery).”
This narrows the statutory provision in Section 65 NABA which does not require the person to show that they need “support” in order to recover. The survivor might be assisted by e.g. some further time to recover, training, employment, rather than “support”.
The VTS Guidance provides that:
- A “victim-centred approach should be adopted”(pg16).
- There is to be a “needs-based approach” (pg6).
- If UK services are of a higher quality this does not lead to a reason to stay.
- Fulfilling recovery/achieving full recovery is not the aim. It is assisting with recovery needs.
- There must be a link to the relevant exploitation, which means “conduct resulting in the positive conclusive grounds decision” (Appendix VTS 3.2(e)).
- The victim will need to address support back home: “in many cases it will be more appropriate or lead to a better overall recovery outcome for victims to return to a place of familiarity where they can access wider support networks, such as their community, family or friends, and where they are familiar with the language and culture to continue their recovery journey”.
“[Decisions]… should be based on one or more of the following criteria being met:
- the individual has experienced physical harm arising from their exploitation of a type that results in physical trauma to the person
- the individual has experienced psychological harm arising from their exploitation that causes mental or emotional trauma or that causes behavioural change or physical symptoms that require psychological or psychiatric care
- the individual requires support either through the National Referral Mechanism or other services to assist in their physical or psychological recovery from their exploitation (this support does not need to accomplish recovery)
- the individual cannot access necessary support in their country of return or country of which they are a national or one to which they may be removed”.
You do not need to be in treatment/support. The wording of the Appendix and VTS guidance do not specify a need for treatment to be in process, although an applicant should show a need for it.
You do not have to provide medical evidence. An applicant “may provide evidence from a registered healthcare professional”. [our emphasis]
The Home Office will look at prognosis, stage of any treatment and balance “whether the treatment is essential in deciding whether a period of stay in the UK is necessary to assist, but not necessarily fulfil, recovery”.
They will look at whether treatment (whether started or not) is available in a country where the survivor can be returned. It does not have to be comparable. They should “assess whether continuity of any treatment the individual has already started will not actively disrupt recovery…Stay will not be necessary if the need for assistance is capable of being met on return.”
It is worth considering what non medical treatment and support the applicant might require.
VTS3.1(b) “enabling the person to seek compensation in respect of the relevant exploitation”
The Appendix reads: “VTS3.2 (c) “seeking compensation” means that the person must have made an application for compensation in respect of the relevant exploitation…”
The Explanatory Notes to NABA state at §642 “Subsection 2(b) provides a grant of leave for confirmed victims of modern slavery to pursue compensation in respect of the relevant exploitation, in light of the obligations in Article 15 ECAT”.
Article 15 ECAT provides: “(3) Each Party shall provide, in its internal law, for the right of victims to compensation from the perpetrators”.
The Rules go further than Section 65(2)(b) NABA which only requires leave to be granted for the purpose of “enabling the person to seek compensation in respect of the relevant exploitation”, which can include where the claim has not yet been made. E.g. there can be delays in securing funding for compensation claims.
If the application for compensation has not yet been made, applicants and solicitors could provide the SSHD with an update from the solicitor making the compensation claim.
The VTS Guidance provides:
“In addition to considering whether it would be reasonable for the victim to pursue a claim from outside the UK (see above), when determining whether leave is necessary for the purpose of enabling the victim to seek compensation, the consideration must include:
- the grounds of the claim must be in respect of the relevant exploitation
- the likelihood of the claim succeeding – in reference to the claims accepted or rejected by the relevant Competent Authority, this will be assessed by asking
for relevant court documents / information on where the individual is in the process and the likely length of the proceedings: from that the you should assess whether the individual needs VTS in the UK
- VTS for pursuing compensation can only be granted for a maximum of 12 months per application
- 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…”.
VTS3.1 (c) enabling the person to co-operate with a public authority in connection with an investigation or criminal proceedings in respect of the relevant exploitation”
The Appendix reads:
(d) “an investigation or criminal proceedings” means an investigation by the public authorities or criminal proceedings within the UK which has been confirmed by the relevant public authority or by the Criminal Prosecution Service; and
(e) “relevant exploitation” means the conduct resulting in the positive conclusive grounds decision”.
- A “confirmed” investigation or criminal proceedings seems to narrow the statutory provision. S65(2)(c): “enabling the person to co-operate with a public authority in connection with an investigation or criminal proceedings in respect of the relevant exploitation”.
- It must be necessary for the victim to be physically present in the UK: see VTS Guidance (pg19).
- VTS3.2(d) precludes the circumstances in MS (Pakistan) v SSHD, in which the Supreme Court held at §35:
“However, it is clear that there has not yet been an effective investigation of the breach of article 4. The police took no further action after passing him on to the social services department… The authorities are under a positive obligation to rectify that failure. And it is clear that an effective investigation cannot take place if the appellant is removed to Pakistan: the UT rightly held that “it is inconceivable that an effective police investigation and any ensuing prosecution could be conducted without the full assistance and co-operation of the appellant. Realistically this will not be feasible if he is removed to Pakistan””.
“VTS 3.3. Permission to stay is not necessary for the purpose of VTS 3.1(a), as set out in Section 65 (4) (a) of the Nationality and Borders Act 2022: (a) if the Secretary of State considers that the applicant’s need for assistance is capable of being met in a country or territory of which they are a national or citizen; or one to which they may be removed in accordance with an agreement between that country or territory and the UK (which may be, but does not need to be, an agreement contemplated by Article 40(2) of the Trafficking Convention).
VTS 3.4 Permission to stay is not necessary… if the applicant is capable of seeking compensation from outside the UK, and it would be reasonable for them to do so in the circumstances”.
- These provisions are incompatible with Article 14 ECAT which have no such requirements or limitations.
- The term “capable of being met” is not defined and capable of different interpretations.
- Supporting evidence will be key.
- Much of the evidence is likely to overlap with any asylum and identification case.
- Witness statements should address physical/psychological harm: why is recovery subjectively not appropriate in country or origin? Why can’t you seek compensation from overseas?
- Medical evidence: Medico-legal reports should be obtained ideally but also letters from medical professionals. A letter or report will assist to confirm that the victim is receiving help (or needs to receive help), how long it will carry on for and why they think help is needed. It is useful for them to confirm 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.
- MSVCC support: Obtain support worker letters. These will be 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 vulnerability, needs and any risk of re-exploitation they might face if they are not granted the safety net of a period of permission to stay, explaining their expertise working with the client group and that of their organisation, and the length of time they have worked with this individual.
- Compensation lawyers: ask them to comment on accessing the process from overseas and whether they think this is reasonable.
- Anyone asked to provide supporting evidence: instruct them carefully and make sure all the bases are covered e.g. causation if possible, diagnosis, prognosis, subjective concerns and their ability to access treatment.
- Country evidence: it is important to address why treatment is not appropriate or suitable overseas and why the need for assistance cannot be met overseas.
- Police investigation or pending trial: 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.
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.
The VTS Guidance reads: “An individual may request one reconsideration of their permission to stay decision if they believe immigration rules or policies weren’t followed correctly when the decision was made”. But the Competent Authorities “still retain the right to reconsider decisions themselves”.
- The Rules do not reflect the fact that there is a right of appeal on human rights grounds under Section 84 Nationality, Asylum and Immigration Act 2002 on the basis that a refusal would breach Article 4 of the European Convention on Human Rights. Make human rights points clear in your application.
- The individual will only be notified of the process to request a reconsideration with their refusal; there are no provisions in the Rules regarding the reconsideration process. There is no time-frame for a decision.
- The VTS Guidance states that a survivor can request a reconsideration within 14 days from the date of the negative decision. When relying on new evidence there does not appear to be a time-frame.
- To ensure there is no support gap, request continued support: via the Recovery Needs Assessment or re-entry to MSVCC support.
Periods and conditions of leave
The Appendix provides:
“VTS 5.1. Permission to stay will be granted for a period not exceeding 30 months when the Secretary of State considers such permission is necessary for the purposes of VTS 3.1(a) or (c) [physical/psychological harm and criminal case leave], and for a period not exceeding 12 months where the Secretary of State considers such permission is necessary for the purposes of VTS 3.1(b). [compensation leave]
VTS 5.2. The grant will be subject to the following conditions:
(a) access to public funds; and
(b) work is permitted; and
(c) study is permitted, subject to the ATAS condition in Appendix ATAS”. [our emphasis]
- The term “may be granted” means there is a discretion for the SSHD to grant less than 30 months.
- The Home Office is “not required to do a holistic assessment of different types of leave that the individual may qualify for” and a “person granted VTS who wants to apply for permission to stay on any other basis, for example family life, must apply on the relevant form”. However, a grant of temporary leave to remain for victims should not prohibit them from being granted another, more advantageous, form of leave, should they qualify for it: House of Commons. (2021). Nationality and Borders Bill (Thirteenth sitting) Debated on Tuesday 2 November 2021. Craig Whittaker. Column 538. We suggest still raising other potential bases for leave in your VTS application as alternatives, even if you lead with VTS.
The VTS Guidance says the Home Office must consider:
- The length of the course of treatment, estimated time to access treatment if it has not started (eg: if they are on a waiting list), weighed against the availability of treatment in the country of origin or removal and if treatment is essential to assist recovery.
- If subsequent treatment is necessary so a period up to 30 months may be needed
- If stay should be given to cover any necessary treatment plus a short period to allow the victim to arrange their return after this has ended. If treatment does not have an end date, the decision on the length of VTS to grant must be based on all available information
- The period requested by the public authorities or police to assist with investigations
- The likely length of time the compensation claim will take to conclude
- The best interests of any child will need to be considered.
- Longer than 30 months could be granted under exceptional circumstances under the provisions of the DL policy.
Cancellation of permission to stay
The Appendix reads:
“VTS 10.1. A person’s permission to stay as a victim of human trafficking or slavery or the child of a victim of human trafficking or slavery may be cancelled where any of the following apply:
(a) the applicant would fall for refusal as a threat to public order (as defined in Section 63 of the Nationality and Borders Act 2022), or as a person who has claimed to be a victim of human trafficking or slavery in bad faith (as per Section 63 of the Nationality and Borders Act 2022).
(b) paragraphs 9.2.2, 9.3.2, 9.4.2, 9.4.5, 9.5.2, 9.7.3, 9.20.1, 9.20.2, 9.23.1 or 9.24.1 Part 9: Grounds for Refusal apply”.
- The Explanatory Memorandum to the Rules at §7.11 provides that permission to stay will not be granted or may be cancelled where:
- the individual is a threat to public order, or
- the individual has claimed to be a victim… in bad faith.
- specified suitability grounds apply when Article 1F(a) of the Refugee Convention (exclusion from protection) applies to the person, there is a deportation order in place, serious criminality is present or false representations have been made (§7.11).
- Under the VTS Guidance: “If a disqualification order has been raised or is ongoing the VTS consideration must be put on hold to await the outcome of that decision”.
- The burden of proof is on the SSHD and the standard of proof is the balance of probabilities. The SSHD should normally give the person an opportunity to provide reasons why leave should not be cancelled. See our section on the public order disqualification.
- The VTS Guidance does not mention what happens to people who were granted a CG before 30.01.23. The Modern Slavery Statutory Guidance says: “14.241. Where a public order disqualification is applied to individuals who were referred into the NRM before 30 January 2023, the disqualification can only be applied to those who have either been referred into the NRM or those who have received a positive reasonable grounds decision and are awaiting a conclusive grounds decision. The public order disqualification will only apply to individuals who received a conclusive grounds decision before 30 January 2023 if new information comes to light or concerns are raised at a later date for example an offence is committed after the 30 January 2023 that would meet the disqualification threshold.” [our emphasis].
- Bear this in mind when making representations for your client if they had a CG before 30.01.23.
Implicit withdrawal of an application for stay
The VTS Guidance provides:
“If an individual leaves the UK before a final decision has been made on their stay application, then you must treat their case as withdrawn and no further decision will be required on their case.
If the individual leaves the UK (in the Common Travel Area (CTA) and out of it) without permission before being granted stay they should no longer be eligible to be considered for a grant of VTS…”.
It seems they cannot have their application reinstated e.g. where they have fallen victim to exploitation again and trafficked from the UK to overseas. This would need to be the subject of a new CG and new application for leave.
Date of application
The Appendix provides: “VTS 1.3. Where no application is made because VTS 1.2 applies references to ‘date of application’ are to the date of the conclusive grounds decision, but if the person is applying to extend their permission to stay under this route, the date of application is the date on which they apply to extend their permission to stay under this route”.
However the VTS Guidance reads:
“References to ‘date of application’ are to the date of the permission to stay decision, but if the person is applying to extend their permission to stay under this route, the date of application is the date on which they apply to extend their permission to stay under this route”.
And: “Any Modern Slavery Discretionary Leave cases that the Competent Authorities have not yet decided where there is an outstanding asylum application are to now fall under this guidance”.
Timeframe for a decision
There is no timeframe for the decision on VTS to be made. The VTS Guidance states: “where possible, expediting applications without unnecessary delay“.
Representatives should ask for it to be granted as soon as possible after the CG decision is made. When the applicant is post CG, RNA support should be requested to be extended until the decision is made, and for a reasonable period afterwards (rather than the survivor being exited from MSVCC support and only able to access “reach in” services.)
- There is no fee for an initial consideration of temporary permission to stay (VTS). Leave will be considered automatically when given a positive CG (VTS Guidance) by the Competent Authorities.
- If a survivor wishes to extend their leave they must make an application to the Home Office (under form FLR(HRO)) not more than 28 days before the existing leave expires.
- However, if a survivor was granted leave to assist with an investigation or prosecution and the public authorities still require the victim to be present in the UK to progress their actions, “public authorities can request that permission to stay is extended by contacting the competent authorities” and an online FLR(HRO) application “may” be rejected and redirected to the competent authorities.
- “Out of time applications (those submitted after the extant period of VTS has expired) must still be considered” (VTS Guidance).
- IHS – government webpage not yet updated but survivors are covered by Health Charge Order.
- Legal aid is available to assist people with this application (and any other) if they have a positive CG: para 32 and 32A of Schedule 1 Part 1 LASPO also as confirmed in LAA guidance.
Application fees for extension applications
- An extension application must be accompanied by the correct fee in line with the Immigration and Nationality Fees Regulations. Under reg 2(3)(c) of the Regulations: “No fee is payable in respect of a further grant of leave under the Appendix where the individual:
- has not yet accrued in total thirty months limited leave to remain in the United Kingdom, granted as discretionary leave or under the Appendix; or
- was not originally granted thirty months limited leave to remain in the United Kingdom (granted as discretionary leave or under the Appendix) and the application is to allow the individual to have in total thirty months limited leave.”
- Reg 2(3)(c) is potentially confusing. If someone is granted 12 months then seeks an extension of eg 30 months, if granted they would get 12+30 months “in total”.
- This does not seem to be the intention behind the Regulations. The Modern Slavery Unit told us (email 30.01.23): “For the extension process the application fee for the route is fee free for those under 30 months of leave, after 30 months a fee waiver is available to apply for. Regardless of the over 30 months those granted VTS are exempt from paying an IHS fee. The online FLR(HRO) form has been updated in line with our measures going live today (30 January 2023) and does now accommodate for the fee exemption for up to 30 months for individuals extending their stay on this route. The new AUK FLR HRO form now requests the applicant to state if they are option 1 or 2 (see below) and they will be directed to pay the Application Fee if option 2 (or use Fee Waiver token if granted). No IHS fee will be required.
Option 1 – under 30 months previous leave – No IHS Fee and No Application Fee
Option 2 – over 30 months previous leave – No IHS Fee and Fee Payable for Application (or Fee Waiver can be applied for)”
- The FLR(HRO) form now allows you to check a fee exemption box if you have under 30 months of previous leave – discretionary or VTS. It just asks “Have you been granted more than 30 months Discretionary Leave permission or as a Victim of Human Trafficking or Slavery?” (yes/no)
- A fee waiver request can be made and must meet the same criteria as for Article 8 ECHR claims.
- Requests for a fee waiver by those who have current permission to stay which expires whilst their fee waiver request is being considered will be allowed 10 working days from the actual date of a fee waiver decision to submit an application for permission to stay/further permission to stay (VTS Guidance). Version 1.0 of the VTS Guidance allowed only 5 working days, which was amended in Version 2.0 to bring it in line with fee waivers for other applications – see the main fee waiver guidance.
- In respect of fee waivers the SSHD must consider the need to promote and safeguard children as a primary consideration under Section 55 of the Borders, Citizenship and Immigration Act 2009.
Challenging negative decisions
- Consider judicial review as a remedy after a negative reconsideration decision.
- To ensure leave under Section 3C of the Immigration Act 1971, consider filing an appeal on human rights grounds under Section 84 of the Nationality, Asylum and Immigration Act 2002.