Trafficking victim left ‘dehumanised and penalised’ by Home Office’s ‘astonishing’ delay – judge

A victim of trafficking has been left “unemployed, dehumanised and penalised” as a result of the Home Office’s “astonishing” delay in deciding whether she has leave to remain in the UK, a High Court judge has said.

The woman, known only as EOG, took legal action against the Home Office last year over its policy of excluding potential victims of trafficking from having discretionary leave to remain in the UK.

She came to the UK on a youth visa in 2017, but “fell under the domination of a man who abused her sexually and forced her into prostitution” in 2018 before she eventually managed to escape.

EOG was referred to the National Referral Mechanism (NRM), a body within the Home Office which decides whether there are “reasonable grounds” to believe someone is the victim of trafficking, in September 2018.

The NRM then makes a final decision – a “conclusive grounds” decision – on whether they are a victim of trafficking, with Home Office guidance stating it “should generally be made as soon as possible after 45 calendar days” from the reasonable grounds decision.

However, EOG had to wait “an astonishing 595 days after her initial referral to the NRM” for a conclusive grounds decision to be made in April this year, Mr Justice Mostyn said in a judgment on Thursday.

The judge said: “That conclusive grounds decision should have led to an automatic consideration of discretionary leave (to remain in the UK), yet at the date I write this judgment, November 26 2020, she has not yet been granted or refused such leave.

“Two hundred and 11 days have elapsed since the conclusive grounds decision without a decision having been made about discretionary leave.

“An astonishing 806 days have elapsed between her initial referral to the NRM and today.”

EOG was “forced to give up her employment” with a trafficking support organisation in September 2019, shortly before her visa was due to expire, and was “cast into the ‘hostile environment’ mandated by the Immigration Act 2014 for overstayers and other illegal migrants”, the judge said.

He added: “As a result of the defendant’s delay, the claimant finds herself in a most unhappy situation where she, as an overstayer, is branded a criminal … deprived of access to basic services, unemployed, dehumanised and penalised.

“She has filed some moving evidence describing her sense of failure and emotional isolation since she has been deprived of the opportunity to work.

“The treatment meted out to her is far removed from the idea of social and psychological recovery.”

Mr Justice Mostyn said there has been “a remorseless increase in cases referred to the NRM” in recent years, with a current backlog of around 9,000 cases which, he said, “will take between two and three years to conclude”.

He noted in his ruling that the present average of 462 days between a referral to the NRM and a conclusive grounds decision “will inevitably worsen given the scale of the backlog”.

At a hearing in November, EOG’s barrister, Amanda Weston QC, argued that the Home Office’s policy of “excluding a recipient of a reasonable grounds decision from a grant of discretionary leave is unlawful”.

In his judgment, Mr Justice Mostyn said the policy is unlawful as it fails to “protect persons in receipt of a positive reasonable grounds decision from removal … pending the conclusion of the process”.

He ruled that the Home Office “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”.

The judge added that the policy should ensure that “someone in the position of the claimant, who has a time-limited right to work, should not have the arbitrary adverse consequence of a removal of that right meted out to her simply by virtue of the delays that she is likely to face”.

In a statement after the ruling, EOG’s solicitor, Zofia Duszynska, from Duncan Lewis, said: “This is a great result for victims of trafficking who come forward and assist in the prosecution of their abusers but who have to wait considerable time for their own status to be resolved.”

EOG’s barrister, Miranda Butler, said on Twitter: “EOG is a brave and brilliant survivor who has used her time in the NRM to play a key role in the investigation of her traffickers.

“I hope the Home Office will now give her the status and security she deserves.”

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