22 Jul Home Secretary intentionally delayed trafficking victims’ claims for stay who were subjected to the Rwanda policy

In response to legal proceedings issued by Gold Jennings’ client “MS” in March 2024, the Home Secretary has admitted that the Home Office intentionally delayed the claims for permission to stay made by asylum seeking trafficking victims who were at the time earmarked for possible removal to Rwanda.

The pause on decision making, which was not published or admitted until now, lasted for a combined total of more than a year, ending in April 2024.

The intentional delays had the effect of frustrating MS’ ability to seek stay, meaning he had to endure continued limbo for more than a year, as well as the possibility of being subject to removal to Rwanda, despite being a recognised victim of trafficking with psychological needs arising from that experience. If he had been granted the statutory VTS form of leave, he would have been taken out of the Rwanda process much more quickly, as well as being able to claim welfare benefits/ work.

MS, a Sudanese national, arrived in the UK in May 2022 whereupon he claimed asylum. He had been trafficked into Libya where he was subject to forced labour and severe mistreatment over many months. As a result, MS suffered serious mental health conditions requiring specialist psychological assistance. MS was detained on arrival in the UK and shortly thereafter, like many others at the time, told his asylum claim could be barred from proceeding in the UK and he could be removed to Rwanda. His mental health was exacerbated by his treatment in the UK, including the limbo and uncertainty he experienced for more than two years.

Following eventual release from detention, MS was later recognised as a victim of trafficking, and he thereby submitted claims for permission to stay. Despite the recognition that he is a victim of trafficking, MS was kept within the Rwanda process, with successive Home Secretaries refusing to admit his asylum claim for substantive consideration. At the same time, between January 2023 and March 2024, his trafficking related claims to stay were not progressed or determined even though uncontested medical evidence confirmed he required leave to be able to begin to benefit from necessary psychological treatment.

When, eventually after nearly two years, M’s asylum claim was admitted for consideration in the UK, he was then refused permission to stay despite internal emails showing that caseworkers were of the view that he was, in fact, entitled to it.

With the Home Secretary having now confirmed the existence of the intentional policy to pause his and others’ claims for stay (see consent order/ statement of reasons), MS will continue his claim for compensation for breaches of Articles 4 and 8 of the European Convention of Human Rights due to the impact being without stay had on his mental health and recovery.

Rachel Etheridge of Gold Jennings says,

“This is yet another example of the Home Office operating unpublished policies which had the effect of preventing vulnerable asylum seekers from receiving a humane and lawful reception. It obstructed victims from obtaining leave in a timely and lawful manner leaving many to endure (and still endure) the misery and instability connected with limbo, as well as further obstacles to accessing assistance they required for their recovery. The secrecy surrounding the policy prevented it being legally challenged sooner. Not only that, but many were kept in the desperate position of having to fight potential removal to Rwanda in circumstances where viable claims for leave were intentionally not being progressed and determined”.

We encourage all victims of trafficking who were/ are subject to the inadmissibility/Rwanda process to seek legal advice as to whether they may also have claims for damages and/ or whether the previous pause is relevant to ongoing claims for trafficking leave.

MS is represented by Rachel Etheridge and Kathryn Peer of Gold Jennings with Shu Shin Luh of Doughty Street Chambers and Miranda Butler of Landmark Chambers.

See our article in Free Movement here

Note to Editors:

MS was granted refugee status in July 2024. MS has the benefit of anonymity orders prohibiting the publication of his identity.

MS had two routes for possible leave:

• Via the landmark 2021 case of EOG and KTT v Secretary of State for the Home Department [2022] EWCA Civ 307 in which it was established that where a person has been recognised as a victim of trafficking under the NRM and has an outstanding asylum claim, which is based on their fear of being re-trafficked, they should be granted leave to remain in the UK until their asylum claim has been finally determined; and
• “VTS” leave which is a form of statutory leave provided for under section 65 of the Nationality and Borders Act 2022 where, for instance, a recognised victim has a need for assistance arising from psychological harm inflicted by exploitation, which cannot be provided for by their home country or another country with which the UK has an agreement like the MEDP.

Whilst both types of leave would be temporary; they would both afford the opportunity for stability, and the right to work and apply for benefits, while asylum claims were progressed. The VTS leave would have also had the effect of taking MS out of the inadmissibility/ Rwanda process.

The pause on KTT leave decisions occurred between March 2023 and March 2024. This is off the back of the High Court’s ruling in R (XY) v SSHD 20245 EWHC 81 earlier this year which found that the Home Office had previously unlawfully operated an unpublished policy of halting KTT claims for leave following the KTT judgment. Whereas in that case the Home Secretary had submitted that decision making resumed in March 2023, it did not in fact resume for asylum seeking trafficking victims who were earmarked for possible removal to Rwanda.

The pause on VTS decision making began from 29 June 2023 when the Court of Appeal ruled that there were substantial grounds for thinking that asylum seekers would face a real risk of ill-treatment by reason of refoulment if removed to Rwanda. This carried on whilst the Home Secretary appealed the ruling, and then following the Supreme Court ruling, while consideration was given to next steps. Decisions resumed in/around April 2024 following decisions being made on victim’s individual inadmissibility cases and around the passage of the Safety of Rwanda Bill.

The Home Secretary’s confirmation of the existence of the pause is set out in the consent order and statement of reasons approved by Lavender J on 18 July 2024.

MS also separately challenged the eventual refusal of both KTT and VTS leave. This claim was also compromised by agreement between the parties on 18 July 2024, with the Home Secretary agreeing to withdraw her decision on VTS leave.