Give trafficked asylum seekers permission to stay, says High Court

The decision in R (KTT) v Secretary of State for the Home Department [2021] EWHC 2722 (Admin), widely reported in the mainstream press this week, is a massive result for trafficking victims. The High Court has concluded that a trafficking victim who is also an asylum seeker must be granted permission to stay (“leave to remain”) in the UK. It is one of those rare judgments where victory on some esoteric legal issues will have huge real-world effects.

International law protection for trafficked asylum seekers
The case centred around the meaning of Article 14(1)(a) of the Convention on Action against Trafficking in Human Beings, usually known as ECAT. It 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…

It has been long-standing Home Office policy to delay considering victims for a grant of permission to stay until after any claim for asylum has been resolved, and then to grant permission only in very restrictive circumstances. People awaiting an asylum decision, even if they are confirmed victims of trafficking, are rarely allowed to work.

In this case, the claimant KTT argued that, when a trafficking victim has claimed asylum, it is necessary for them to stay in the UK while that claim is considered. As a result, there is an obligation, as a matter of international law under Article 14(1)(a), to grant permission to trafficking victims who have also claimed asylum.

Mr Justice Linden concluded that this submission reflected the language of the provision:

On balance, I prefer Mr Buttler’s interpretation of Article 14 ECAT, which is based on an ordinary reading of the text of the provision and, in my view, consistent with its purpose. The reality of Mr Tam’s argument on interpretation is that Article 14(1) should be read as if it says that the issuing of the residence permit must be necessary, whereas the language of the provision clearly requires consideration of whether the stay is necessary in which case the permit must be issued. Indeed, the requirement to consider whether “their stay is necessary” leaves room for it to be the case that the victim is staying in any event. The provision then asks whether the stay is necessary for a particular reason or purpose, in which case a residence permit, with attendant benefits and advantages, is required to be issued.

That established the obligation in international law. But ECAT is an unincorporated treaty, so a breach of its provisions does not lead to a straightforward breach of domestic law (unlike a breach of the European Convention on Human Rights, incorporated by the Human Rights Act 1998).

The anti-trafficking convention in UK law
The domestic legal status of ECAT is an issue which has been bubbling away for some time.

In an early case, R (Atamewan) v Secretary of State for the Home Department [2013] EWHC 2727 (Admin), Sir James Eadie QC made two important concessions on behalf of the Home Office. First, that the guidance on granting trafficking victims permission to stay purports to give effect to ECAT in domestic law. Second, as a result, if the policy does not correctly give effect to ECAT then that is a breach of domestic law. This concession has meant that over the years the courts have treated allegations that Home Office policy does not comply with ECAT as justiciable, even though there is no general domestic law obligation to comply with ECAT. Most notably, a Court of Appeal bench which included Lord Justices Singh and Hickinbottom accepted the concession in R (PK (Ghana)) v Secretary of State for the Home Department [2018] EWCA Civ 98.

In this case, though, the Home Office attempted to roll back the years by withdrawing both concessions and arguing that a breach of ECAT was not justiciable and that the policy guidance does not seek to give effect to ECAT. Linden J carefully reviewed the issues, before concluding that he supported the position accepted by the court in PK (Ghana):

The critical point in the PK (Ghana) line of cases is that the source of the public law obligation contended for was the declared policy of the Defendant rather than ECAT itself. In each case it was decided or conceded that, as a matter of fact – this was in fact the Defendant’s policy – and construction – this is what her policy documents said – the Defendant had committed to making the relevant decision in accordance with the requirements of the relevant article(s) of the ECAT. It was therefore permissible for the court, applying conventional public law principles, to consider what the requirements of those articles were with a view to deciding whether the policy correctly stated their effect and whether a given decision, taken in accordance with that policy, was lawful. This did not involve direct enforcement of an unincorporated treaty as the treaty was not the source of the obligation contended for. Nor did it involve the filling of lacunae, as Mr Tam submitted, given that the claimants in those cases relied on what was said in the policy documents.

The judge also gave short shrift to the suggestion that the policy guidance had nothing to do with ECAT, pointing out that it refers to the UK’s ECAT obligations on several occasions and includes links to the text of ECAT and the judgment in PK (Ghana):

The reasonable reader would, in my view, conclude from this, and from the inclusion of a link to ECAT, that the Defendant’s policy was to comply with the law relating to people trafficking (whether international or domestic) and that these materials were provided as a reference point in the event that a case worker wished to look at the relevant sources in more detail. The impression that the Policy is intended to ensure that decisions are taken in accordance with the law relating to people trafficking, and to assist decision-makers in doing so, is also reinforced by the references to the United Kingdom meeting its objective under the Trafficking Convention and to relevant legislation and international obligations which I have highlighted at paragraphs [70] and [73]-[74], above.

That finding allowed the judge to conclude that the failure to comply with the requirements of Article 14(1)(a) was a breach of domestic law.

The outcome will have massive practical benefits for thousands of trafficking victims. They should now be entitled to proper immigration permission while waiting for their asylum claim to be processed. It is an amazing result and hopefully the Court of Appeal will see no reason to interfere if the Home Office decides to appeal.

UK Spouse Visa Applications-Do you wish to apply for a UK spouse visa?

October 2021

Do you wish to apply for a UK spouse visa?

As with any other immigration applications, there are a number of requirements you need to meet in order to submit and be approved for the visa. We summarise the main requirements below but you need to bear in mind that as each case is different and unique, some applications might require additional evidence.

In order to apply for permission to enter to the UK as a partner or spouse, you and your partner both need to be 18 years old or over.

Your partner must either:

be a British or Irish citizen
have settled in the UK – for example, they have indefinite leave to remain, settled status or proof of permanent residence
be from the EU, Switzerland, Norway, Iceland or Liechtenstein and have pre-settled status and they must have started living in the UK before 1 January 2021
The UK partner visa requires you and your partner to have intention to live together permanently in the UK after you apply.

You must be able to prove one of the following in order to apply for partner visa:

you’re in a civil partnership or marriage that’s recognised in the UK
you’ve been living together in a relationship for at least 2 years when you apply
you are a fiancé, fiancée or proposed civil partner and will marry or enter into a civil partnership in the UK within 6 months of arriving
You also need to prove you:

have a good knowledge of English
you meet the financial requirement
you have suitable accommodation upon arrival to the UK
If you’re applying as a fiancé, fiancée or proposed civil partner

You must prove that:

any previous marriages or civil partnerships have ended
you plan to marry or become civil partners within 6 months of arriving in the UK
You will not be able to work during your engagement.

How to prove financial requirements for UK partner visa?

One of the most important criteria for any partnership visa to the UK is that you and your partner must have a combined income of at least £18,600 a year. This financial requirement applies if:

you’re applying as a partner
you want to settle in the UK (get ‘indefinite leave to remain’) within 5 years
You and your partner can use various ways to meet the required income level, including:

income from employment
income you earn from self-employment or as a director of a limited company in the UK
cash savings above £62,500
money from a pension
non-work income, for example from property rentals or dividends
If you’re using income from self-employment or employment, you’ll need to prove you or your partner received that income for 6 months or more.

How long is the visa valid for?

The UK partner visa allows you to stay in the UK for 2 years and 9 months. If you’re applying as a fiancé, fiancée or proposed civil partner, you can stay for 6 months, after which you can switch to another visa.

Depending on your personal circumstances, you can extend your partner visa in the UK for further 33 months. Once you have spent the required time living in the UK on the partner visa, you can apply for indefinite leave to remain and UK passport.

To apply for extension as a spouse or partner, your relationship must be genuine and ongoing.

If your relationship breaks down, your visa might be cancelled or you might be able to apply for a different visa category to allow you to stay lawfully in the UK.

Do I Need An Immigration Solicitor To Help With Uk Partner Visa?

There is no requirement for you to have a legal representation when applying for the partner visa. However, we know that the Home Office refuses a high number of applications.

Therefore, if you want a peace of mind, you can instruct an immigration expert to assist you with the UK partner visa application process.

UK – New Immigration and Asylum Bill Provides Fundamental Changes

On July 6, 2021, the Nationality and Borders Bill (the bill) was introduced in the UK Parliament with the aim of amending the current asylum and immigration system in the United Kingdom (UK). The Home Secretary, Priti Patel, introduced the bill so that the UK can “take full control of its borders” and prevent the asylum system from being abused. The bill has raised concerns from immigration practitioners.

The bill has just passed the first reading, which is the initial stage in the UK’s legislative process. The reading is usually described as a formality as at this stage a bill is passed without a debate. A date for a second reading is then usually set when the Members of Parliament will debate the bill, make amendments, and vote on passing the bill to the next stage of the law-making process.

If enacted, the bill will make fundamental amendments to the asylum and immigration system. With respect to existing asylum law, the bill seeks to amend the criminal offense of illegal entry by removing the requirement of “entry.” The difference between arriving and entry is that asylum seekers are not deemed to have ‘entered’ the UK until they disembark. Under the proposals in this bill, any person arriving in the UK without permission can be prosecuted. Currently, if an asylum seeker disembarks at a port, they do not ‘enter’ the UK until they have passed through immigration control. Removing the requirement of entry may open asylum seekers to prosecution for just arriving in the UK before being able to claim asylum. Immigration practitioners have expressed concern that the broadness of the offense may potentially lead to “thousands of additional convictions every year.” However, any potential criminal prosecution must first meet the Crown Prosecution Service’s two-stage test: (i) whether there is sufficient evidence to prosecute; and (ii) whether it is in the public interest to prosecute.

The bill aims to amend the offense of helping an asylum seeker to enter the UK by removing the requirement of facilitating “for gain.” This means that any person who knowingly facilitates the arrival, or attempted arrival, of an asylum seeker, will be guilty of an offense and subject to life imprisonment, regardless of whether they facilitated the entry “for gain.” (Clause 38.) An exemption to this offense is maintained for organizations that aim to assist asylum seekers and do not charge for their services. Lawyers have queried whether this offense would conflict with maritime law if a person were to help a boat in distress that contained asylum seekers, and also whether organizations such as the Maritime and Coastguard Agency and the Royal National Lifeboat Institution may be prosecuted under this bill as they would not fall into the above exemption. The Home Office published a tweet stating that the coastguard and lifeboat services would not be prosecuted for helping boats in distress, however, it did not provide a legal basis for this statement.

The bill provides for “differential treatment of refugees” depending on their mode of arrival. (Clause 10.) As a result, the length of time a refugee may be granted permission to stay in the UK, whether permission to enter the UK will be given to a refugee’s family, and the requirements a refugee must meet to obtain indefinite permission to remain in the UK may vary depending on how they arrived in the UK. Additionally, the bill provides the power to remove an asylum seeker to a ‘safe third country’ to claim asylum if they stopped in that country prior to the UK. The bill also allows the government to remove asylum seekers to a safe third country while their asylum appeal in the UK is processing. (Schedule 3(1).) In line with that provision, the Home Secretary is set to propose offshore processing centers for asylum seekers in the UK.

The bill will make changes to the court process. First, it will provide “Priority Removal Notices”, which will cause some removal and deportation appeals to be heard directly in the Upper Tribunal (Immigration and Asylum Chamber). This will create a single-tier appeal system for those select cases, which was previously in place in the UK but was abolished in 2010. The immigration appeal system is currently two-tiered, with the First-Tier Tribunal hearing appeals on Home Office decisions, followed by the Upper Tribunal hearing subsequent appeals. The bill provides the courts with the power to fine legal representatives personally – including the Secretary of State and the Home Office’s representatives – for “improper, unreasonable, or negligent behaviour.” (Clause 62.) This follows from the Home Secretary’s promise to “tackle the practice of meritless claims which clog up the courts,” although cases only go to court after the Home Office denies an initial application.

The bill seeks to fix the naturalization issue for victims of the Windrush Scandal, which saw many migrants – who had permission to remain in the UK indefinitely but had no records to evidence this – being refused re-entry to the UK after traveling abroad. The Windrush Scheme, launched in 2018, allowed those victims to obtain documentation and compensation. However, these individuals did not automatically receive British citizenship and had to live in the UK for five years, among other requirements, in order to apply for citizenship. The bill will enable the government to waive that five-year requirement, which will allow a person who had been forced to remain outside of the UK by no fault of their own, including the Windrush victims, to become a British citizen without waiting five years.

This post details just some of the amendments in this bill.