Case Study: Challenges to Home Office policy
Recent cases have raised questions regarding the decision making process by the Secretary of State for the Home Department (SSHD) when implementing its policy when deciding cases involving victims of trafficking.
In the case of EOG v SSHD  EWHC 3310 (Admin),  All ER (D) 37 (Dec) (3 December 2020) it was submitted that whilst following the SSHD’s policy of ‘Discretionary Leave Considerations for Victims of Modern Slavery’, the decision makers had not followed the obligation of Article 10.2 of The Council of Europe Convention on Action against Trafficking in Human Beings (ECAT) which acts as a safeguard for those receiving a positive decision under reasonable grounds against their removal from the country whilst awaiting the end of the matter. It was also submitted that whilst omitting this obligation, the decision maker had also not applied any form of discretion when applicable. Mr Justice Mostyn found, para :
‘Suffering such persons to remain as overstayers, or as illegal immigrants, does not fulfil the obligation. The defendant must formulate a policy that grants such persons interim discretionary leave on such terms and conditions as are appropriate both to their existing leave positions and to the likely delay that they will face.’
In a similar case, R (IJ (Kosovo)) v SSHD  EWHC 3487 (Admin) the SSHD failed to make a discretionary decision when considering a refugee’s permission to work whilst awaiting the decision on her asylum application despite the fact that the position was not covered by the shortage occupation list. In addition to challenging the use of the policy guidance, it also appeared that failure to depart from the normal rules resulted in a discriminatory result, mainly under Article 14 ECHR. It was submitted by Mr Justice Bourne, para , that :
‘[…] the lack of reference to a discretion in the guidance does create a real risk that caseworkers will fail to have sufficient regard to the particular circumstances, […] of those who claim to be victims of trafficking, and of their decisions thereby being discriminatory in the Thlimmenos [a failure to treat differently persons whose situations are significantly different] sense.’
It is evident from the recent case law that Home Office policy has resulted in challenges when deciding cases, in particular for victims of trafficking, as decision makers have failed to come to conclusions on a discretionary basis, thus coming to inequitable decisions.