The UK High Court ruled Tuesday that the Secretary of State for the Home Office unlawfully operated a “secret policy” that saw more than 1,500 people who were the victims of modern slavery denied leave to remain. The Claimant, known as XY, was kidnapped and enslaved by a gang in Albania, his home country. The Single Competent Authority (SCA), one of the competent authorities who identify and support potential and confirmed victims of modern slavery through the National Referral Mechanism (NRM), accepted he was a victim of modern slavery in 2021. The determination of his asylum claim was, however, hindered by the policy and the risk of his removal was “impeding his psychological recovery and aggravating his mental ill health.”

Victims of modern slavery are entitled to leave to remain under the “Discretionary Leave Considerations for Victims of Modern Slavery” policy in accordance with article 14(1)(a) of the Council of Europe Convention on Action against Trafficking in Human Beings 2005 (ECAT) which states that parties to the convention “shall issue a renewable residence permit to victims … (a) the competent authority considers that their stay is necessary owing to their personal situation”.

As the ECAT was not incorporated in domestic law, the application of Article 14 rests with the secretary of state, however, the court highlighted that “discretionary leave may be considered under the policy where the Competent Authority has made a positive conclusive grounds decision that an individual is a victim of modern slavery and they satisfy one of a number of criteria.”

The decision follows the landmark ruling in R ( KTT) v the Secretary of State for the Home Department, where it was held that confirmed victims with ongoing asylum claims based on re-trafficking risk were eligible to modern slavery leave under the Home Office’s published policy. The court held in the present judgement that “not only did this rob the policy of coherence, it strongly supports the Claimant’s contention that leave to remain was offered in these circumstances precisely to keep the policy secret.” It concluded that the government therefore breached its duty of candor by withholding information from victims awaiting the decision of their asylum claims.

The court concluded in its decision that the government breached Article 8 of the European Convention on Human Rights, because of its interference with the claimant’s right to leave and for the failure to serve decisions, thus violating  his procedural rights. It has furthermore found that it breached Article 14 of the ECHR as he was not treated as a confirmed victim of modern slavery.