Tribunal decisions

The decision

Case No: JR-2025-LON-001083
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR

29 June 2026
Before:

UPPER TRIBUNAL JUDGE RASTOGI

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Between:

THE KING
on the application of
TK
Applicant
- and -

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

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Ms E. Fitzsimons
(instructed by Asylum Aid), for the applicant

Mr T. Tabori
(instructed by the Government Legal Department) for the respondent

Hearing date: 31 March 2026

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J U D G M E N T

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Judge Rastogi:
1. By way of the only remaining ground (ground 3), the applicant challenges the respondent’s practice of only granting 12 months’ temporary permission to stay to recognised victims of modern slavery (“VTS leave”) pursuant to section 65 of the Nationality and Borders Act 2022 (“NABA”) (“the practice”). The remaining grounds 1-2 were settled by way of a consent order signed on 26 March 2026. Those grounds sought to challenge the respondent’s original decision of 8 January 2025 (upheld by the decision of 17 February 2025) to only grant the applicant 12 months’ of VTS leave. As part of these proceedings, the respondent disclosed that there was (then) an unwritten policy only to grant 12 months’ VTS leave in recovery cases where the treatment is open-ended and no specific duration given. It is accepted by the respondent that this disclosure, coming as it did on 27 October 2025, was a breach of her duty of candour. As of 17 December 2025, this practice is now referred to in the respondent’s ‘Current Circumstances Questionnaire’ (“CCQ”).
2. The applicant’s judicial review proceedings were first brought on 8 April 2025 and he was granted permission on both the original grounds. By way of the detailed grounds of defence, and following the disclosure, the respondent’s position was that those grounds were academic because on 27 October 2025 she agreed to reconsider the decision under challenge.
3. Following the respondent’s disclosure, the applicant sought to amend his grounds to introduce a challenge to the practice. Permission was granted by Upper Tribunal Judge Pinder by way of an order sealed on 11 February 2026. The timetable was then amended to permit the respondent to amend her Detailed Grounds of Defence if so advised and for the applicant to reply if so advised. Various other case management orders have been made but the most relevant of those was my order in which I provided for the applicant’s application for permission to rely on the witness statements of the applicant’s solicitor Monika Glowacka and a clinical psychologist, Dr Christina Curry to be considered de bene esse. I return to that below.
4. In the meantime, on 10 March 2026 the respondent made a new VTS decision granting the applicant 4 months’ VTS leave expiring 11 July 2026, as a result of which the applicant conceded that determination of Grounds 1 and 2 is no longer required. It was that development which resulted in the consent order in which the respondent also accepted a breach of the duty of candour resulting in the late disclosure of relevant material.
5. The only challenge now is to the respondent’s practice as crystallised within Ground 3 which says, in summary:
Ground 3 – Operation of Unlawful Practice:

a) Unlawful as unpublished policy;
b) Inconsistent with published Policy1 and amounts to a fetter of discretion;
c) Frustrates the purpose/is contrary to Article 14(1) of the Council of Europe Convention on Action against Trafficking in Human Beings (“ECAT”);
d) Contrary to s. 149 Equality Act and the Public Sector Equality Duty;
e) The practice is irrational.
6. As part of the amended grounds of review, the applicant seeks relief in the form of:
a) a declaration that the respondent’s operation of the undisclosed practice was unlawful;
b) a declaration that the respondent’s practice is unlawful;
c) a declaration that the respondent, in adopting the practice, breached the Public Sector Equality Duty (“PSED”);
7. I clarified at the hearing whether or not these were the only remedies sought and Ms Fitzsimons stated that the applicant still seeks the declaration at (ii) of the original grounds, namely:
“A declaration that the Respondent’s decision of 8 January 2025, upheld in the reconsideration decision of 17 February 2025, to grant the Applicant 12 months VTS only (as opposed to a longer period of leave), was unlawful;”
8. Whether or not that is open to me is a matter in dispute given that, by virtue of the Consent Order, the decision itself is no longer under challenge. I return to that below.
9. I have had the benefit of an agreed hearing bundle (“HB”), an agreed bundle of authorities (“AB”) and helpful skeleton arguments prepared by both advocates. I also have the applicant’s pending application for permission to rely on further evidence. At the hearing, I heard detailed submissions on behalf of both parties. I refer to the evidence and submissions as required when evaluating the merits of each of the sub-grounds of challenge.
Relevant Background
10. Before turning to the substance of the challenge, I mention briefly the context in which this application arose. The applicant is a disputed national of Eritrea from where he fled, ultimately, in 2002. He lived in Sudan until 2011 when he fled there as he heard Eritrean activists were being sought. He travelled through a number of Middle Eastern states before arriving in Syria and ultimately through Europe, arriving in the United Kingdom in February 2015.
11. Following a relatively lengthy process of an (ultimately unsuccessful) asylum claim, by way of a decision dated 14 April 2022 he received a positive Reasonable Grounds decision, and on 26 January 2024 he was conclusively recognised as a victim of trafficking for the purposes of forced labour in Syria whereupon it was noted:
a) he sustained period of exploitation and harm in 2011 for approximately four months;
b) he was forced to work for free;
c) he was physically and sexually tortured whilst held there and threatened with death;
d) the trafficking caused the applicant’s mental health conditions, namely Post-Traumatic Stress Disorder (“PTSD”) and Major Depressive Disorder.
12. As a result of that experience, the applicant also sustained physical injury as a result of which he now has chronic pain, a diagnosis of internal disc derangement and other physical complications. He requires specialist long-term therapeutic intervention [HB888]. He has support needs in order to access health services, currently provided by a Salvation Army support worker provided through the Modern Slavery Victim Care Contract (“MSVCC”).
The applicant’s VTS leave process
13. The applicant first made representations in support of his entitlement for VTS leave on 9 February 2024. Thereafter followed a series of decisions, challenges, reconsideration decisions and an earlier judicial review application compromised by consent in an order dated 18 September 2024. Updated representations for VTS leave were made on 29 November 2024.
14. The applicant submitted a number of pieces of medical evidence with his application (see section 10 of the bundle). I do not list it here given that the individual decision in the applicant’s case is no longer being challenged. Suffice to say, it is common ground that the totality of this evidence does not provide a time-scale for the applicant’s treatment. Some of those reports are relatively historic. Of those that are more proximate to the November 2024 submissions, the evidence is that the treatment for the applicant’s mental health is likely to be long term before he can be considered as recovered and in January 2024 that was said to be “long term therapy of at least 12 months” [HB875] and in September 2024 “long-term and highly specialised psychological treatment” [HB888]. In particular, he has open-ended counselling appointments (can be ended at any time) with a specialist counsellor which started in July 2024 following the assessment that he required long-term specialised psychological treatment. By 14 November 2024 he had attended 18 appointments [HB983]. As to his physical conditions, a colorectal procedure was advised in May 2024; he was referred for a brain MRI in October 2024 due to a history of headaches.
15. Before me, there was also evidence from the applicant and updating evidence from Ms Fonseca, a specialist support worker at the Salvation Army, about the impact upon him of a grant of only 12 months’ leave.
The application to admit new evidence
16. The application related to the witness statements of Ms Glowacka and Dr Curry which I indicated I would consider de bene esse but which I deal with here for convenience.
17. Dr Curry is a Clinical Psychologist and the Director of Therapy at the Helen Bamber Foundation (“HBF”) with extensive experience of dealing with survivors of trafficking as outlined in her evidence and which was not challenged. Her evidence was in the form of a witness statement rather than an expert’s report. However, the content of her statement was founded on her experiences with the HBF and dealt with the general position relating to survivors of trafficking. The HBF is a specialist and well-known centre assisting survivors of modern trafficking and slavery. Dr Curry has not been involved with the applicant or his care.
18. Her report is summarised in her concluding paragraph [46] as follows:
“Survivors of trafficking present with a complex array of support needs. Support needs include, but are not limited to, therapeutic intervention for serious mental health conditions such as PTSD, complex PTSD, and depression, and these interventions require flexibility, stability and expertise. Resources for the provision of these therapies are in short supply, and NHS services have long waiting lists for individuals with complex needs. Trafficking survivors are unlikely to be able to benefit from therapeutic interventions that take place in twelve months or less, given waiting times, their own readiness, practical and psychosocial barriers to care and support, and the complexity of their mental health needs.” [HB332]
19. With some qualification, I find Dr Curry’s evidence to attract weight. My qualification is that there is an extent to which Dr Curry’s evidence reflects what appears to be a widely held position taken by the HBF that short grants of leave to remain (less than 30 months) are contrary to the needs of trafficking survivors. That can be elicited from [28]-[29] of Dr Curry’s report where she referred to the HBF’s report entitled “The Road to Nowhere – The impact of insecure immigration status of survivors of trafficking” published in July 2025 and which she appended as Exhibit CC2 [HB336]. Therein HBF makes a case for the whole VTS policy in the UK being contrary to international law and the needs of survivors of trafficking and modern slavery, particularly those who are children and that it imposes a stringent evidential burden upon victims to secure the leave they require to access the treatment to assist their recovery [HB341]. Of itself, that is not the issue before me.
20. HBF’s views are reflected in Dr Curry’s evidence that practitioners are often reluctant to be tied to time-limits for treatment which might be “crudely converted into grants of leave, thereby potentially causing iatrogenic harm” [41]. Dr Curry sets out the problems with short grants of leave “for example less than 30 months” [43] (although the specific examples she sets out all relate to periods of leave of 12 months or less [44]). She explains that means that survivors become preoccupied with the next stage of their application progress rather than enabling them to focus on their treatment [45].
21. Ms Glowacka’s witness statement details the process applicants have to follow when applying for VTS leave generally and with specific reference to the process followed in the applicant’s case in January 2026 after the ‘publication’ of the practice. Furthermore, she sets out where she envisages problems may arise. Her evidence is summarised at [5] of her statement [HB215] as follows:
“In my professional experience, the Practice of granting VTS leave for only 12 months in cases where victim is in an open-ended treatment or cannot provide evidence of the expected duration of their treatment, creates significant practical obstacles for victims. These include, but are not limited to, their eligibility for public funds, access to social housing, and right to work. This is in addition to any existing trauma-related vulnerabilities, the sense of uncertainty about the future and the negative impact this has on victims’ recovery, potential difficulties in accessing legal representation to help them navigate the complex process of applying for an extension of their VTS leave, including challenging any related delays in decision making”.
22. Notwithstanding the qualification to the evidence of Dr Curry, I have found the evidence of both witnesses to be of assistance both as to the process applicants have to follow when applying for VTS leave and the likely impact of the same. Mr Tabori made no submissions to the effect that the evidence ought not be admitted (even though the respondent had sought initially to object to its admission) and, indeed, he cited from Dr Curry’s witness statement in his oral submissions. It is clear the evidence was obtained in response to the respondent’s disclosure, which she accepts was late and provided in breach of her duty of candour. In those circumstances I admit the evidence.
The Legal Framework
23. Section 65 NABA provides as follows:
“Leave to remain for victims of slavery or human trafficking

(1) This section applies if a positive conclusive grounds decision is made in respect of a person—
(a) who is not a British citizen, and
(b) who does not have leave to remain in the United Kingdom.

(2) The Secretary of State must grant the person limited leave to remain in the United Kingdom if the Secretary of State considers it is necessary for the purpose of—
(a) assisting the person in their recovery from any physical or psychological harm arising from the relevant exploitation,
…
(4) Leave is not necessary for the purpose mentioned in—
(a) subsection (2)(a) if the Secretary of State considers that the person’s need for assistance is capable of being met in a country or territory within paragraph (a) or (b) of subsection (5) (or both)

(5) A country or territory is within this subsection if—
(a) it is a country of which the person is a national or citizen;
(b) it is one to which the person may be removed in accordance with an agreement between that country or territory and the United Kingdom (which may be, but does not need to be, an agreement contemplated by Article 40(2) of the Trafficking Convention).”.
24. Appendix - Temporary Permission to Stay for Victims of Human Trafficking or Slavery (“Appendix VTS”) was introduced on 30 January 2023 to implement section 65 NABA. It is an automatic consideration process for newly found victims of human trafficking or slavery following a positive conclusive grounds decision (CGD). Anyone who already has temporary permission under this route, or on a discretionary basis under the victim of modern slavery policy can also apply for an extension utilising this route [AB13].
25. VTS 3.1 of Appendix VTS sets out the requirements to be met and that includes, as relevant:
“the grant of permission to stay is necessary for the purpose of: -
(a) assisting the person in their recovery from any physical or psychological harm arising from the relevant exploitation;…”
26. VTS 3.2 of Appendix VTS says:
“For the purpose of VTS 3.1 the following apply:

(a) “physical or psychological harm” means harm of a type that results in physical trauma to the person; or psychological harm that causes mental or emotional trauma or that causes behavioural change or physical symptoms that require psychological or psychiatric care and where the physical or psychological harm arises from the “relevant exploitation”; and

(b) “assisting the person in their recovery” for psychological or physical harm means that the applicant requires support either through the National Referral Mechanism or other services to assist in their recovery from their exploitation (this support does not need to accomplish recovery);
….
(e) “relevant exploitation” means the conduct resulting in the positive conclusive grounds decision.
27. VTS 5.1 provides that where the necessity condition is met pursuant to VTS 3.1(a)/section 65(1)(a), “Permission to stay will be granted for a period not exceeding 30 months”.
The Respondent’s Policy
28. The policy supplements the Rules. It is guidance to the respondent’s caseworkers telling them about “temporary permission to stay for confirmed victims of trafficking or slavery (VTS)”; “the circumstances in which it is appropriate to grant VTS” and “what must be considered before making that decision”. It also covers “extensions of stay”. It applies to all considerations made after 24 October 2024 [HB990]. The Policy also explains the policy shift that, from 30 January 2023, the respondent fulfils her obligations to confirmed victims of modern slavery pursuant to domestic legislation (NABA) rather than ECAT [HB995/997].
29. The intention of the policy is set out [HB995] and that includes, (as relevant):
“a fair and effective permission to stay process …
to support the principle of a needs-based approach …
recognising that each victims’ experience of modern slavery will be different… some will need assistance to recover from any physical and/or psychological harm arising from their exploitation…
it may be necessary for them to stay in the UK to assist with that recovery ….
ensuring applications are properly considered in a timely and sensitive manner on an individual, objective, and impartial basis, acknowledging the vulnerable situation that applicants may find themselves in and, where possible, expediting applications without unnecessary delay…”
30. The policy also summarises the relevant international obligations and domestic legislation and at [HB998] says of NABA:
“The Nationality and Borders Act 2022 (NAB Act) puts victims of modern slavery rights into domestic law, providing clarity on their entitlement to a recovery period, and support, which will be tailored to their personal needs.”
31. Guidance is then provided to the decision-maker as to how they are to assess the relevant eligibility requirements of the Rules [HB1006-7].
32. As to whether or not assistance is required to recover from any physical or psychological harm, the policy says (as relevant):
“a victim-centred approach should be adopted….
The aim in granting stay is not to assist in fulfilling recovery or to guarantee or achieve full recovery but to assist the victim with achieving recovery from psychological or physical needs that have arisen as a result of their exploitation.

……one or more of the following criteria being met:

• the individual has experienced ……psychological harm arising from their exploitation that causes mental or emotional trauma or that causes behavioural change or physical symptoms that require psychological or psychiatric care
• the individual requires support either through the National Referral Mechanism or other services to assist in their physical or psychological recovery from their exploitation (this support does not need to accomplish recovery)
• the individual cannot access necessary support in their country of return…….”
33. As to the assessment of whether treatment is necessary to assist an individual in their recovery from physical or psychological harm, the policy says (as relevant):
“a person should provide evidence from a registered healthcare professional, that they need or are receiving medical treatment. In these cases, consideration should be given to whether it is necessary for the person to stay in the UK to start, or continue to receive, this treatment. You should consider the prognosis and stage of treatment and balance whether the treatment is essential in deciding whether a period of stay in the UK is necessary to assist, but not necessarily fulfil, recovery. The person should provide evidence from a medical professional which clearly demonstrates how the treatment is linked to the person’s recovery arising from the relevant exploitation……
34. On the issue of whether treatment is available in the country of return (and regarding the interruption of treatment), the policy says (as relevant):
“You should assess whether the individual has already started treatment and if so, whether discontinuing that treatment would actively disrupt recovery. You should consider the prognosis and stage of treatment and balance whether the treatment is essential when deciding whether a period of stay in the UK is necessary to assist, but not fulfil, recovery.

Decision makers should consider whether there are any existing safeguarding risks to the individual that may impact or disrupt recovery if the victim’s treatment has already started. Competent Authorities should follow the relevant safeguarding policies and procedures and identify if there are any acute safeguarding risks present that would impact the victim’s assistance with recovery. Stay will not be necessary if the need for assistance is capable of being met on return.”
35. On the issue of the length of stay, the policy says (as relevant):
“You will determine duration of stay by considering the individual facts of the case but stay should not normally be granted for more than 30 months at a time for assisting with psychological / physical recovery needs ….
You must consider the following:
…….
Stay to assist recovery from physical or psychological harm arising from the relevant exploitation:

• length of the course of treatment and any estimated time to access necessary treatment if it hasn’t started (for example if they are on a waiting list), this should be weighed against the availability and likely accessibility of treatment in the country of return, and whether the treatment is essential to assist recovery
• whether subsequent treatment is necessary that means a longer period of stay may be needed, up to 30 months maximum
• stay should be given for a period to cover any necessary treatment plus a short period of stay to allow the victim to arrange their return after this has ended. If treatment does not have an end date, then the decision on the length of VTS to grant must be based on all available information”
36. There is also provision for longer periods of stay to be granted, but the policy provides for this to happen outside the Rules and in exceptional circumstances under the Discretionary Leave guidance.
37. The policy sets out the right to reconsideration of an unfavourable decision and the consideration of the same.
The respondent’s disclosure/the practice
38. On 27 October 2025 the respondent disclosed that the original decision to grant the applicant 12 months’ VTS leave was taken pursuant to the policy which outlines that “the duration of stay is determined by considering the individual facts of the case” and as a result of an “internal standard operations practice” to provide 12 months’ leave where treatment does not have an end-date and that reflects a “proportionate and reasonable decision-making process which allows time to access treatment and assess future medical needs in line with the policy intention of VTS which is that the VTS is provided on a needs-based basis…”. The letter concludes with a reminder that “an individual may submit a further application for VTS at any time before their leave expires, should additional medical evidence become available indicating the need for continued treatment” [HB601].
39. Further disclosure was made on 21 November 2025 in which the respondent said the practice is “not written anywhere internally. A copy of it cannot be disclosed”, “there is no ‘document’” and the existence of the practice only came to light as a result of these proceedings. The respondent confirmed that work was underway to disclose the nature of the practice to applicants [HB611].
40. On 3 December 2025 the respondent updated the policy but without reference to the practice.
41. On 13 January 2026, the respondent filed a witness statement of Mr Joel McGivena, a disclosure bundle and a copy of the revised National Referral Mechanism (“NRM”) CCQ. It is common ground that the combination of these two pieces of evidence represent the totality of what is known of the existence, scope and application of the practice.
42. Mr McGivena is the Deputy Chief Caseworker for the Immigration Enforcement Competent Authority (“IECA”). He said the following of the practice [HB204-5]:
“6. The Practice arises in cases where a stay is considered necessary for a victim in order to assist recovery from physical or psychological harm arising from their exploitation. When determining the durations of VTS leave for an applicant, caseworkers consider the individual facts of the case, including but not limited to the length of the course of treatment, whether subsequent treatment may be necessary, and any period of stay to allow the applicant to arrange their return after the requisite treatment has ended. Each case is subjective, given that treatment required will vary depending on the applicant’s individual circumstances.

7. In some circumstances, applicants are unable to provide any information about the length of time required for treatment; for example, because their medical needs are yet to be properly evaluated due to the individual being in a stabilisation stage of treatment following recent exploitation. In these circumstances, where the SSHD has determined that such applicants require a stay in order to assist with their recovery from harm arising from exploitation but cannot tailor the duration of leave due to a lack of available information, 12-months of initial VTS leave is granted. This is a proportionate starting point in order to allow applicants to commence treatment.

8. The Practice, to my knowledge, has been in place for over approximately 9 years; including the time period before the implementation of VTS, when leave for victims of modern slavery was considered using the modern slavery discretionary leave process. It is disseminated to caseworkers usually on a case-by-case basis. Caseworkers will discuss individual cases with a technical specialist. If the caseworker decides that a grant of VTS leave is appropriate, however is unable to find any information that could provide a timeframe, they will raise this with the technical specialist. They will go through the available evidence together to confirm that there is no information on the length of time of the treatment, if no information is available on timeframes the technical specialist will advise a 12-month grant of leave.

9. The Practice is a purely verbal instruction. There are no written documents or handling instructions which have been used to operationalise the Practice. The conversation between the technical specialist and caseworker is the first step in providing consistency to ensure there is no other option than to grant the 12 months. Once this has happened the grant proposal will be drafted and sent to senior management, who will also review the evidence and confirm that 12 months is the only option. If the senior manager identifies a timeframe, they will return the grant proposal to be re-drafted with the applicable timeframe. This approach is applied in the IECA and the SCA (my emphasis).

10. Consistency of decision-making is maintained across both the SCA and IECA by conversation between the Chief Casework teams in both competent authorities.”
43. The disclosed amended CCQ now provides, in bold text, the following wording [HB371]:
“If you are unable to provide evidence of the time required to complete treatment then an initial period of leave of 12 months is generally considered by the Competent Authority to provide an appropriate length of time to access open-ended treatment.

Consideration will be given to reducing this duration where treatment has already started.

If you require further leave after this initial period, then an extension request to the grant may be submitted with no fee payable.”
44. On 23 February 2026 Ms Emily Harris (the respondent’s lawyer) filed a witness statement setting out the respondent’s breach of her duty of candour in which she confirmed that she first became aware of the practice on 4 September 2025 during a meeting which included the respondent’s representatives and Mr McGivena. Ms Harris said at [7] of her witness statement:
“The Practice was not known to GLD or those instructing GLD on behalf
of the Respondent at the outset of these proceedings and until 4 September 2025 as stated above.”
Ground 3 – Discussion and Conclusions
45. Notwithstanding that the VTS decision in the applicant’s case no longer requires determination by virtue of the Consent Order, considerable reference was made in the evidence and the submissions to the applicant’s circumstances and the impact upon him of the need to continue to apply for VTS leave.
46. The reason for that, in part, is to be found in Ms Fitzsimons’ skeleton argument in which she refers to his situation in order to “demonstrate the real world mischief of the operation” of the respondent’s unpublished practice [27]. It is partly to this end that the applicant also sought permission to rely upon the evidence from Ms Glowacka and Dr Curry.
47. However, given that the applicant now has the benefit of VTS leave and as the respondent’s position is that the practice is now published through the amended CCQ (see [43] above), a question arose as to whether or not Ground 3(a) (which challenges the lawfulness of the unpublished practice) is also academic.
48. Much was made of this issue in pleadings. However, at the hearing, Mr Tabori accepted that I could properly deal with it. His reasoning in brief was, firstly, because there was a dispute between the parties as to whether or not the practice was in fact properly published and, secondly, in any event, this was the substantive hearing, the issue was before me and both parties were ready to deal with it. Accordingly, there was no bar to it being heard and determined. Mr Tabori also accepted that it was open to me to consider whether to grant declaratory relief in relation to the pre-December 2025 position (not the post-publication position).
49. I am grateful to Mr Tabori for his pragmatic approach and, in any event, I also find there to be considerable force in Ms Fitzsimons’ submissions that even if the practice is found to be published now, the evidence is that it has operated for 9 years as an unpublished policy, so there are likely to be many others who would have been unknowingly affected by it. Accordingly, there is a strong public interest in resolving an otherwise academic claim as contained within Ground 3(a) namely, whether or not the respondent’s operation of the unpublished practice is unlawful (R (Zoolife) v Secretary of State for Environment, Food and Rural Affairs [2007] EWHC 2995 (Admin) applies).
50. However, the question of whether or not the practice is ‘published’ also has another significance, namely the extent to which I can consider the unlawfulness of the practice now (and therefore, if I get that far, the scope of the declaratory relief claimed). By this I mean, if I find the practice to have been published in a Lumba-compliant sense (see below), but otherwise found it to be unlawful for one or more of the reasons contained within Grounds 3(b)-(e), would I be permitted to grant appropriate declaratory relief bearing in mind that the publication took place after the date giving rise to these judicial review proceedings? Whilst the decision originally under challenge is no longer challenged, the fact remains that it was taken at a time when the practice had not been ‘published’ but was nevertheless (we now know) applied to the applicant’s application for VTS leave. The usual position in judicial review proceedings, is that consideration is given to the situation and the facts which were known at the time the decision under challenge was taken and not anything which has happened since. Whilst, the applicant has been granted further VTS leave following the practice being ‘published’ on the amended CCQ, he has not sought to amend his pleadings to challenge that decision on the basis of reliance on an unlawful policy or otherwise.
51. I note that the specific sub-sections of Ground 3 all describe the challenge as being to the ‘practice’, save in Ground 3(a) which challenges the ‘unpublished practice’. That appears to accord with the amended remedies which the applicant seeks which again distinguish between a declaration as to the operation of the ‘undisclosed practice’ being unlawful and then another two such declarations in relation to the ‘practice’. Mr Tabori did not submit that I was precluded per se from making declarations in relation to the published practice save that I could not to do unless I find it to be unlawful (which the respondent, of course, disputes).
The interplay between the Grounds 3(a), 3(b) and 3(e)
52. Part of Mr Tabori’s submissions were that even prior to 17 December 2025, it was not necessary for the respondent to have published the practice in order for it to be lawful. In expanding on that submission he relied on the interplay between the published policy and the practice. Furthermore, in submitting that the practice has now been published to the sector of the public who need to know about it, he relied on the procedural process required to be considered for VTS leave as contained in the Rules, the policy and the practice. On behalf of the applicant, Ms Fitzsimons did likewise in order to make her submissions under Grounds 3(a) and (e). This interplay between the practice and the respondent’s published policy self-evidently also engages Ground 3(b). For this reason, I set out the competing positions on both Grounds 3(a) and (b) first and then move on to my discussion and conclusions about them both (and, as will be seen, also incorporate there my conclusions on Ground 3(e)).
Ground 3 (a) - The unpublished practice is unlawful
The competing positions
53. The thrust of the applicant’s case here is firstly that the respondent is not permitted, lawfully, to rely on a material policy or practice which is not published (R (Nadarajah) v SSHD [2003] EWCA Civ 1768; R (Lumba) v SSHD [2011] UKSC 12; R(XY) v SSHD [2024] EWHC 81 (Admin) and the statement of reasons in R (HAL) v SSHD AC-2025-LON-001600) particularly where the policy affects fundamental rights or the ability of the person to make informed representations (as the applicant says is the case here). For these reasons, the applicant seeks a declaration as to the unlawfulness of the unpublished policy in order to correct the past position and serve an “important vindicatory purpose”.
54. Secondly, or in the alternative, Ms Fitzsimons invited me to consider whether the practice remains unpublished, or whether the way in which the CCQ has been amended to refer to the practice is sufficient such that it amounts to publication. She submitted that it is not, particularly because the practice still does not appear in the policy which is what applicants refer to when preparing such applications, thus the CCQ comes too late. Furthermore, Ms Fitzsimons submitted that on the respondent’s own evidence, what has been done is not compliant with what Lumba says is required for a policy to be published.
55. Mr Tabori distinguished Lumba and the other aforementioned cases on the basis that they revealed practices which were diametrically opposed to the published policy (in the case of Lumba and HAL) or a judgment of the High Court (in the case of XY) which he submitted is patently not the case here. In the present case, it was already plain from the published policy that the duration of leave which could be granted was variable (“up to 30 months”) and evidence was required to justify a grant of leave. The practice does not depart from that principle and an applicant knows that the obligation is upon them to evidence why they claim leave should be granted and that the length of that leave is not prescribed. Accordingly the practice layers onto the high level policy guidance and is consistent with it. Mr Tabori further submitted that as the statute does not deal with duration at all (it just deals with the principle of leave), the practice does not bear on the statutory criteria as was the case in Lumba. Accordingly, he submitted that even prior to the CCQ amendment, it was not unlawful for the respondent to have relied on the practice as the Lumba principles do not mandate publication of this type of practice in these circumstances. Accordingly, there was no disadvantage in being unaware of the practice and the 12 month starting point.
56. As to publication, the respondent relies on the fact of the amended CCQ which she says is sufficient to amount to publication on the basis that it is sent to all individuals who receive a positive CGD for the purposes of consideration of VTS leave and those who apply for an extension of VTS leave. At the hearing, Mr Tabori handed in the definition from Stroud’s Judicial Dictionary 11th Edition which defines ‘published’ as “means transmitted to the world at large, or any section of the public”2.
57. In any event, he submitted practitioners should now be aware of the practice. In other words it is sent to the particular section of the public who need to be aware of it. Accordingly, those individuals will know of the criteria to be applied and would be able to challenge an adverse decision with informed and meaningful representations ([36] and [38] of Lumba apply). Mr Tabori submitted there is no need for individuals to make any representations prior to receipt of the CCQ so the fact that the practice is not known by those people before then is immaterial.
58. As to the application for declaratory relief, the respondent’s overarching position is that this can only be granted if unlawfulness is found and there is now no unpublished policy before the Tribunal. Mr Tabori accepted it is open to the Tribunal to consider whether or not declaratory relief is required in relation to the pre-CCQ amendment situation.
Ground 3(b) – the practice is inconsistent with published policy and amounts to a fetter of discretion
The competing positions
59. The applicant relies on the wording of the published policy which said (at the time of the decision in the applicant’s case and still) that “if treatment does not have an end date, then the decision on the length of the VTS to grant must be based on all available information”, in other words a holistic evaluation which is consistent with the “needs-based approach” required to support victims of modern slavery. A decision-maker has to follow published policy unless there were good reasons for not doing so (Lumba applies). Accordingly, the practice operates as an unlawful fetter on the respondent’s discretion (British Oxygen Co Ltd v Ministry of Technology [1971] AC 610; R v Secretary of State for the Home Department, ex p Venables [1998] AC 407). The evidence of Mr McGivena bears this out particularly as the practice is still unwritten in its detail and no information provided as to how a decision maker could depart from the 12 month starting point. Ms Fitzsimons submitted that the respondent’s own disclosure reveals the inflexibility of the approach utilised in the applicant’s case and, in fact, it does not reveal any awareness of the possibility of granting leave beyond 12 months. Rather it had all the hallmarks of a rigid and inflexible practice.
60. The respondent submits that there is no tension between the practice and the policy. Mr Tabori’s overarching submission is that, whether looking at the practice or the policy, the key is the need for evidence, both as to the need for and duration of medical treatment, particularly as the applicant knows that a 30 month grant of leave will not automatically follow. He submits it is not mechanistic to note that the evidence supplied does not provide for the duration of the treatment and then grant 12 months’ leave in accordance with the practice. Mr Tabori relied on the evidence of Dr Curry to submit that in 40% of cases, the grant of leave was less than 12 months which means that most people must have provided evidence of their treatment lasting longer than 12 months. Accordingly, this is far from a rigid practice, it is simply one which provides for a starting point in cases where the end date of treatment is not known or evidenced.
61. On the issue of whether or not the policy is a fetter on the exercise of discretion, Mr Tabori distinguished British Oxygen on its facts because in the instant case there was no evidence the respondent was closing her ears to an argument. Mr Tabori submits that the 12 month practice is a starting point and is a lawfully used practice in other policies such as the Restricted Leave policy. In respect of the practice in question here, the discretion regarding the length of leave is informed by “all the available information” and if there is no reference in the evidence to the length of the applicant’s treatment, it is not for the respondent to guess (R (MXV) v SSHD [2026] EWHC 251 (Admin) [112]). To do so would be to venture into medical territory which would likely attract challenge in itself. There was nothing arising in the facts of the applicant’s case which compelled a different decision (the applicant did not request a particular grant of leave). He submitted that, even though much was made in the further evidence of the need for security and certainty, the maximum VTS leave is 30 months in any event, so a 12 month grant of leave is not improper.
Discussion and conclusions on Grounds 3(a), (b) and (e)
62. In Lumba, the claimants challenged their detention in circumstances where they were detained as a result of an unpublished policy of detaining all convicted foreign national offenders on completion of their sentences in breach of the published policy which provided for detention only where justified. The majority of the Supreme Court held the unpublished policy to be unlawful both as it was effectively operated on a blanket basis and because it conflicted with, and was less favourable to, the claimants.
63. In arriving at that decision, the Lord Dyson JCS set out a number of useful principles in relation to policies and publication, summarised as follows:
a) a policy should not be so rigid as to amount to a fetter on the decision-maker’s discretion [21];
b) a decision-maker must follow his published policy (and not some different unpublished policy) unless there are good reasons for not doing so. The principle that policy must be consistently applied is not in doubt; the Secretary of State could not rely on an aspect of his unpublished policy to render lawful that which was at odds with his published policy [26];
c) the rule of law calls for a transparent statement by the executive of the circumstances in which the broad statutory criteria will be exercised [34];
d) immigration powers need to be transparently identified through the immigration rules [34];
e) an individual has a basic public law right to have their case considered under whatever policy the executive sees fit to adopt provided that the adopted policy is a lawful exercise of the discretion conferred by the statute. There is a correlative right to know what that currently existing policy is, so that the individual can make relevant representations in relation to it [35] and challenge an adverse decision with reference to the criteria which have been applied [36];
f) it is in general inconsistent with the constitutional imperative that statute law be made known, for the government to withhold information about its policy relating to the exercise of a power conferred by statute [36];
g) the terms of a scheme which imposes penalties or other detriments are at least as important as one which confers benefits [36];
h) what must be published is that which a person who is affected by the operation of a policy needs to know in order to make informed and meaningful representations to the decision-maker before a decision is made [38].
64. In relation to detention, at [37] Lord Dyson JCS illustrated the point made in [38] as follows:
“…the Cullen policies provided that certain non-serious offenders could be considered for release. The failure to publish these policies meant that individuals who may have been wrongly assessed as having committed a crime that rendered them ineligible for release would remain detained, when in fact, had the policy been published, representations could have been made that they had a case for release.”
65. XY involved decisions about whether to grant discretionary leave to remain to confirmed victims of modern slavery who had also claimed asylum. It is not necessary to set out the details here but, in summary, the High Court found that the respondent’s instructions to her officials (which involved a material departure from the published policy as it should have been applied in light of a High Court judgment in another case) amounted to the respondent having unlawfully adopted an unpublished (secret) policy or practice. At [65] the Lane J said:
“The only way in which the defendant could avoid the consequences of operating a secret Lumba-style policy would be to seek to characterise the instructions as, in effect, exceptions to the defendant’s published policy. As is well known, the owner of a policy may depart from it, where there are good reasons to do so. The problem here, however, is that the person concerned is entitled to be informed that the decision-maker has departed from the policy in their case. As can be seen from the materials, that simply did not happen.”
66. I cannot agree with Mr Tabori that Lumba can be distinguished. Whilst the facts are different, the overarching principles derived from Lumba are those founded in transparency and fairness and the requirements that a person must have a fair opportunity to make meaningful representations before a decision is made on how statutory powers are to be exercised.
67. Section 65 of NABA gives the respondent the power to grant VTS leave and mandates it if certain criteria are met. Duration is not dealt with, but the respondent is mandated to provide VTS leave in health cases where it is ‘necessary’ and provides the causative link between the need for the leave, the recovery assistance required, and the ‘relevant exploitation’. In other words, for as long as the need is there, leave will be necessary.
68. The Rules provide the detail as to how that power should be exercised and the information required in order to assess whether the criteria are met. Under the Rules, the maximum period of VTS leave is 30 months in health cases (VTS 5.1).
69. The Rules do not contain information about how the duration of leave is to be calculated but some assistance is given to caseworkers in the published policy. It is clear from the policy, that it is not the case that all applicants will be granted 30 months’ leave and, the precise duration will depend upon the factors set out in the three bullet-points (see [35] above). With reference to treatment “without an end date”, the decision ‘must’ be based on “all the available information”. It is also clear from the policy that the onus is on the applicant to provide medical evidence to address their eligibility for a grant of VTS leave (see [33] above).
70. I pause here to note that, although Mr Tabori argued against a finding that the respondent should bear any responsibility in this process for assessing (medically) the likely period over which treatment may be necessary (absent medical evidence), the policy does appear to confer such a responsibility. I set out the detail at [34] above, but, for example, the policy is clear that it is for the caseworker to assess “whether treatment is necessary to assist an individual in their recovery from physical and psychological harm”, and that the caseworker “should consider the prognosis and the stage of treatment and balance whether the treatment is necessary to assist, but not necessarily fulfil, recovery” albeit it then refers to the onus being on the individual to provide medical evidence dealing with causation between the treatment and their recovery.
71. So what of a situation where the medical evidence does not specify a length of treatment, or where it has not yet started? That is where the practice appears to kick in and requires the caseworker to discuss the situation with a technical specialist (para 8 of Mr McGivena’s witness statement - see [42] above). Given that the practice has been verbal only for the last 9 years, it is difficult to see how there can be any real assurance that such a process would have been followed. The evidence falls short of demonstrating the extent of knowledge of the practice amongst caseworkers. However, assuming the caseworker is aware, contact is made with the technical adviser who is supposed to review the evidence to ensure there is no reference to duration or an end-date and, if not, 12 month leave will be advised. Thereafter, the case is referred to Senior Management “who will also review the evidence and confirm that 12 months is the only option” unless “the senior manager identifies a timeframe”.
72. Mr McGivena’s statement does not include any reference to either the caseworker or the technical adviser being able to do anything other than either: (i) locating some evidence of the length of treatment, or (ii) advising the grant of 12 months’ leave. In other words, there appears to be no scope to advise that notwithstanding the lack of evidence as to the specific length of treatment, a period of either longer or shorter may be appropriate having regard to “all the available information”.
73. I contrast Mr McGivena’s evidence with the amended CCQ which now ‘publishes’ the practice on its front page. It is readily discernible that it differs in material respects from the evidence about the nature of the unpublished practice as I have just set out. Firstly, it refers to the initial 12 month period being “generally considered … to provide an appropriate length of time to access open-ended treatment”. Secondly, it provides for a lesser period to be considered where treatment has already started. It makes no express reference to a longer period, save that an extension request can be made free of charge.
74. As to how the practice actually operates, the disclosure now provided enables an assessment of what happened in the applicant’s case. On 10 December 2024 the caseworker (GA) emailed the VTS Grant request to a ‘JT’ of the IECA (Immigration Enforcement Competent Authority) [HB380]. The VTS grant request took the form of a template form with a series of what look like pre-populated questions which the caseworkers then answer. It is not clear whether the template is used in all cases where approval is required for a grant of VTS leave or whether it is just used for those situations as where there is no evidence of the length of treatment.
75. Therein, in response to one of those questions, GA indicated that there was evidence from the counsellor dated 14 November 2024 that the applicant attends open-ended counselling, has a diagnosis of PTSD, and there was a finding in the conclusive grounds decision that there was previous medical evidence that the applicant’s symptoms were as a direct result of being trafficked [HB381]. As to length, GA said:
“psychotherapist and integrative counsellor confirms the RV attends open ended counselling weekly 50 mins sessions. Counsellor recommended long term specialised psychological treatment. No timescale given, 12 months with a view the RV can request an extension?” [HB382]
76. Further emails between Andrew (AM) and JA were disclosed. AM also works in the IECA. On 11 December 2016 JA emailed AM and said he had reviewed the applicant’s file and “I recommend a grant of TPS”. He then effectively repeated the information GA gave about the medical evidence and said:
“No official timescale has been provided, as a result a recommendation of 12 months TPS is suggested, with a view that the RV could request an extension at a later date.”
77. The only email from AM was about whether there was extant deportation action to which JA replied in the negative. On 16 December 2024 JA emailed GA back and confirmed that the “grant of 12 months TPS has been approved by Andrew” [HB384].
78. It appears that JA did carry out a review of the applicant’s file but there is no evidence AM did so specifically, although he evidently must have approved the request.
79. Accordingly, in the main, the example of what happened in the applicant’s case accords with the process set out in Mr McGivena’s witness statement.
80. In terms of the process an individual has to follow in order to be considered for a grant of VTS leave, it is common ground that such individuals fall into two categories: (i) those who have been given a positive conclusive grounds decision who are automatically considered for a grant of VTS leave3, and (ii) those who have had a grant and apply for it to be extended. Although the former are not technically ‘applicants’, throughout the policy both categories of individuals are described as such [HB1001]. It is also common ground that for both categories of applicant, a CCQ form is sent to the individual for completion prior to the VTS decision being made.
81. Ms Glowacka described the process of category (ii) applicants in her witness statement. She did so with reference to the applicant’s application of 6 January 2026 which was made protectively because the respondent had still not reconsidered the withdrawn 8 February 2025 decision and so the applicant’s VTS leave was due to expire. Therein she stated that the application form (FLR(HLO)) was uploaded to the respondent’s system on 6 January 2026; the respondent sent a CCQ to the solicitors on 13 January 2026 for completion and return to the Competent Authority by 26 January 2026; supporting documents were uploaded to the respondent’s system on 20 January 2026; on 26 January the CCQ was returned to the Competent Authority together with detailed representations arguing for a minimum of 30 months’ leave and the supporting documents already uploaded were sent to the Competent Authority as well.
82. I have no reason to think that there would have been any real difference in this process prior to ‘publication’. The historical documents are in the bundle. Of particular note are the detailed representations of 9 February 2024 [HB702] and, after the settlement of previous JR proceedings, the CCQ was sent to the applicant on 30 October 2024 [HB746] requiring a response by 13 November 2024.
83. Common to both CCQs is a section on the first page in which the individual is reminded about the need to submit supporting evidence and how to apply for more time, if required. In fact, in the 2024 application such a request was made (16 days) and granted [HB752/758] and thereafter detailed further submissions were sent with supporting evidence [HB754].
84. The main difference between the representations from 2024 and those lodged in 2026 after the respondent’s disclosure is that, in the earlier representations, the request was simply for a grant of VTS leave whereas in the 2026 representations, the request was for a specific minimum length of leave.
85. This is significant. It goes without saying that if an applicant does not know of the 12 month practice, they cannot make representations about it. Returning to Lumba, in order for a policy to be lawful, it must be published to enable meaningful representations to be made.
86. To Mr Tabori’s submission that duration has never been guaranteed and the onus has always been on an applicant to produce evidence of the necessity of treatment (and therefore VTS leave), I accept that in principle. However, I find there to be a material difference between an applicant who thinks they are applying for ‘up to 30 months’ leave’ and one who knows that without evidence of the treatment end date, they will only get 12 months’ leave. One of the reasons I say that is because of what the policy says about treatment without an end date. That says a decision will be made “on all the available information”. That suggests that a holistic assessment will take place as to the appropriate duration of leave. Indeed, as I pointed out at [70] above, the policy gives the responsibility for deciding about the necessity for leave to the caseworker. The policy is drawn widely enough to include a situation where a person’s clinician has not been able to give a specific end date but where other information is given as to the extent of their ill-health, the overall time (in general terms) that their recovery is likely to take, and reasons for that. I note, for example, that in the applicant’s case, he supplied evidence that his recovery was likely to be long-term (see [14] above); at paragraph 41 of Dr Curry’s report, she said that HBF evidence will annex information about the 3-stage model and also “including in clinical letters relevant individual factors that may require additional work, should they exist”.
87. Therefore, it is not only possible for an applicant to provide evidence that treatment will take a long time and why a short grant of leave (of less than 30 months) may have a detrimental impact on them (such as the impact of repeated applications for leave on their recovery) but it is also permissible, if not obligatory, under the policy for that to be considered as part of “all the available information” by the decision-maker when deciding upon the duration of leave.
88. The unpublished practice, on the other hand, appears to take away that degree of flexibility afforded by the policy. As I explained at [72] above, there appears to be only two options: a grant of VTS leave in accordance with evidence about the treatment end date on the one hand, or 12 months on the other. Even with a degree of flexibility, I fail to see how that can realistically be exercised without information from an applicant as to the factors which should inform the exercise of discretion. It follows that, if an applicant does not know of the parameters within which a decision maker is operating, meaningful representations cannot be made (and that includes why it should not be for a period of less than 12 months as suggested by the ‘published’ version of the practice in the event that the respondent maintains that the published practice represents what has always been the case).
89. The real mischief here, and I find this to underline the clear need for clarification and publication of the policy, is that the precise basis on which the practice has been operating for the last 9 years (at least) is not sufficiently known. As Mr Tabori noted, Dr Curry’s evidence is that from the information obtained by the HBF via Freedom of Information Requests, 40% of those they assist who were granted VTS leave got it for less than 12 months, which suggest that 60% got it for over 12 months. However, it is not clear whether that includes anyone who had not evidenced a treatment end-date. If there was such evidence, that would have assisted the respondent to defend the accusation that operation of the practice is a rigid one rather than one based on “all the available information”. There is no evidence that the respondent has any data on the subject. In fact, that seems improbable given the lack of awareness by those in authority of the practice. As mentioned above, it is hard to feel confident about whether all caseworkers were aware of the practice, and it is not clear whether the ‘VTS Grant request’ always identified if there was an absence of evidence about the duration of treatment.
90. Overall, I find it difficult to draw safe conclusions about how the unpublished practice has actually been implemented.
91. With all of that in mind, I arrive at the following conclusions on Grounds 3(a), 3(b) and 3(e):
a) It is clear from paragraph [9] of Mr McGivena’s witness statement that, in the event of a person not providing evidence of the duration of their treatment, the consequence of the operation of the unpublished practice is that the grant of 12 months’ leave is “the only option”. To that extent, in my judgment, the unpublished practice is a rigid one and on its face, allows for no discretion (notwithstanding that the reality of its operation is far from clear). To the extent that Mr McGivena refers to the unpublished practice as a ‘starting point’, I find that can only be in so far as there is no limit to the amount of applications a person can make for VTS leave. Accordingly, a person can be granted further periods of VTS leave adding to the initial 12 month starting point. It does not mean that 12 months’ leave is the starting point within the unpublished practice from which there is discretion to depart. The evidence does not support such an interpretation.

b) In my judgment, the practice has now been lawfully published. As it appears in the CCQ which is sent to all those who may be eligible for VTS leave (under either route – see [24] above) and as it informs those applicants that, in the event that the evidence does not provide for an end-date for treatment, “generally” 12 months’ leave is likely to be appropriate. That enables applicants to make meaningful representations as to what should be the appropriate duration of leave (Lumba). They do not need to do so at an earlier stage, notwithstanding the applicant’s submissions, because they will have the chance to do so at the CCQ stage and have the opportunity to seek extra time to collect evidence should that be required (see [83] above). Although the applicant submitted that more information needs to be published about the operation of the practice in order for it to be Lumba compliant, I do not agree. The policy otherwise provides the detail as to what case-workers need to take into account and consider and what the evidential expectations are. This is the end of a process which is otherwise relatively well-documented through statute, the Rules and in published policy. The missing component is an instruction as to what happens if there is no evidence of a treatment end-date and about which an applicant needs to be informed to enable meaningful representations.

c) Accordingly, the respondent’s operation of the practice up until 17 December 2025 when it was published was unlawful by virtue of being unpublished, precisely because it did not provide for meaningful representations to be made (Lumba [38]) (Ground 3(a) is made out).

d) The unpublished practice operated as a rigid practice and, consequently, it was also inconsistent with published policy which required a decision about the duration of leave to be based upon “all the available information”. I do not find this simply to be an evolution of the policy as Mr Tabori submitted to deal with the particular situation of the absence of an end-date for the necessary treatment. I have set out at [86]-[87] above examples of where there may be evidence which falls short of providing an end-date but from which it would be permissible and reasonable for a decision-maker to use discretion to decide upon a period of leave in accordance with published policy. As this is not open to a decision-maker applying the unpublished practice, I am satisfied that practice was unlawful as it was inconsistent with published policy (Lumba [26]); it represented a fetter on the policy maker’s discretion (Lumba [21]) and was, therefore, irrational (Grounds 3(b) and 3(e) made out).

e) Notwithstanding that the practice has now been published, in my judgment, the applicant is entitled to declaratory relief set out at [6(a)] above) for the above reasons and notwithstanding that the practice has now been published. That is because there are likely to be many other people unknowingly affected by the practice since the start of its operation, but particularly those to whom it was very recently applied given that the practice was only published on 17 December 2025.
92. I say in passing that, given the practice is now published and any potential applicant informed about the respondent’s view as to what the appropriate duration of leave is ‘in general’ considered to be, it is open to an applicant to address why the ‘in general’ position should not apply to them and point to factors which directs the respondent to consider ‘all the available information’ in order to make a decision about duration in compliance with the published policy. Unlike the position when the practice was unpublished, this does not have the hallmarks of a rigid practice and the 12 month period is better characterised as a ‘starting point’.
93. It follows that, to the extent I was invited to consider Ground 3(b) with reference to the published practice, I do not find Ground 3(b) to be made out.
94. Before moving on, I make one other point. I do not understand why the respondent has not incorporated the practice into her published policy. Failure to do so does not render the practice unlawful providing it is consistent with her published policy and otherwise lawful, but it does not make any real sense to me why there should be two separate sources of information to which applicants need to have regard when preparing their application for VTS leave.
Ground 3(c) - practice frustrates the purpose / is contrary to Article 14 ECAT
The competing positions
95. The applicant contends that, as Article 14(1)(a) of ECAT requires an individualised assessment of a person’s circumstances both when considering whether to grant leave and the duration of any such leave, the practice is incompatible with that duty and frustrates the purpose of tailoring leave to the victim’s individual recovery needs.
96. Conversely, the respondent argues that ECAT does not specify a duration of leave and the practice does not prohibit an individualised assessment. Furthermore, the principle of good administration favours consistency rather than arbitrary treatment (R (Alconbury Developments) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295). Contrary to the applicant’s submissions, the practice is not a “fixed 12-months’ maximum”.
Discussion and conclusions on Ground 3(c)
97. I was directed both to the terms of Article 14(1)(a) of ECAT and to ‘Explanatory Report – Action against Trafficking in Human Beings, 16.V.2005’ (“the Explanatory Report”).
98. Article 14(1)(a) says (as relevant):
“Article 14 – Residence Permit

1 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:
….’
99. Paragraph 184, 187 and 188 of the Explanatory Report say as follows (as relevant):
“184. The personal situation requirement takes in a range of situations, depending on whether it is the victim’s safety, state of health, family situation or some other factor which has to be taken into account.
..
187. The Convention leaves the length of the residence permit to the Parties’ discretion, though the Parties must set a length compatible with the provision’s purpose. By way of example, the EU Council Directive of 29 April 2004 on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, who cooperate with the competent authorities sets a minimum period of 6 months.

188. Even though the Convention does not specify any length of residence permit it does provide that the permit has to be renewable….”
100. I carry forward my finding at [91(a)] above as to what the unpublished practice actually was. Applying that finding to the above, even the unpublished practice provided for a renewable permit for a 12 month period which, given the discretion to be afforded to parties to the Convention as to the duration of the permit (para. 187) and the overarching requirement that a permit must be renewable (para. 188), does not appear to fall foul of Article 14(1)(a) ECAT.
101. I have considered whether, what is said at paragraph 184 of the Explanatory Report, is capable of undermining this conclusion but I have decided it does not. I say this because I find it is the decision to grant a residence permit, as opposed to the duration of the same, which requires consideration of the “personal situation requirement”. I find the only part of the Explanatory Report which deals with duration are paragraphs 187 and 188, and as noted, the unpublished practice accords with those requirements.
102. I do not find Ground 3(c) to be made out.
Ground 3(d) – the practice is contrary to s. 149 Equality Act 2010 (“the EA”) and the PSED
The competing positions
103. By this sub-ground, the applicant put the respondent to proof to show that (i) she had due regard to the statutory matters required by s. 149 of the EA before adopting the Practice; (ii) that there had been reasonable inquiry into those matter; and that (iii) the duty has been complied with in substance, with rigour and an open mind (Bracking v Secretary of State for Work and Pensions [2013] EWCA Civ 1345 at [25]). Ms Fitzsimons submitted there is no evidence that the respondent expressly considered the PSED and that the purported explanation in the further updated Detailed Grounds of Defence (“FDGD”) is not sufficient. She pointed to the mischief created by someone who is so unwell their clinician could not provide a treatment end date only getting 12 months’ leave under the practice and then having to reapply, compared with someone who was less well but for whom the treatment end date was said to be 24 months and who ended up with a longer period of leave than the more unwell applicant.
104. In the FDGD, the respondent says she “inherently had due regard to the need to advance equality of opportunity between disabled persons falling within this VOT cohort and VOTs without such disability, including the need to meet the specific needs of the former”. She contends that the practice is specifically designed to address the needs of the single group who fall within section 65(2)(a) NABA. The relevant characteristic they share is “victims of trafficking who are suffering from significant physical and mental health needs”. Accordingly the practice implicitly furthers the aims of ECAT, Appendix VTS and the VTS policy which requires an assessment of the person’s specific circumstances.
Discussion and conclusions on Ground 3(d)
105. It may be helpful to remember what the PSED actually is. It is set out at section 149 of the EA. Ms Fitzsimons helpfully summarised it at paragraph 51 of her skeleton argument as follows:
“The Public Sector Equality Duty (“PSED”) at section 149 of the Equality Act 2010 (“EA 2010”) requires that the SSHD must, in exercise of her functions, have due regard to the need to:
i. Eliminate discrimination, harassment, victimisation and any other conduct prohibited by the EA 2010;
ii. Advance equality of opportunity between persons who share a relevant characteristic and persons who do not share it;
iii. Foster good relations between persons who share a relevant protected characteristic and persons who do not share it.”
106. It has not been argued that the respondent was not required to consider the PSED in implementing the practice and, on its face, the duty to do so is a general one and would apply.
107. Mr Tabori relied specifically on [24] of Lord Brown’s judgment in (McDonald) v Kensington and Chelsea RBLC [2011] UKSC 33 which says:
“Where, as here, the person concerned is ex hypothesi disabled and the public authority is discharging its functions under statutes which expressly direct their attention to the needs of disabled persons, it may be entirely superfluous to make express reference to s 49A and absurd to infer from an omission to do so a failure on the authority’s part to have regard to their general duty under the section. That, I am satisfied, is the position here. The question is one of substance, not of form.”
108. In my judgment, the respondent has not demonstrated that there was any express or other consideration given to the PSED at the point at which the practice was adopted. I say that for the following reasons.
109. Firstly, the practice was hitherto unknown to many; secondly, it is accepted that, until publication, it was never written down; thirdly, the respondent does not rely on any evidence to show that the PSED was expressly considered, or how ‘due regard’ was had to the above mentioned factors; fourthly, save for the witness statement of Mr McGivena, the respondent has not disclosed any evidence as to the process by which the practice was developed and then adopted and Mr McGivena’s statement says very little, if anything, about it.
110. I find there to be some merit in the applicant’s submissions that operation of the unpublished practice is capable of leading to differential treatment between the part of the cohort who can evidence the end-date of their treatment and those that cannot (see [103] above), but I am not satisfied that it is at a level where the ‘due regard’ necessity is very high (see, for example, [62] of Harjula v London Councils [2011] EWHC 488 (Admin)). Furthermore, I do not find it to justify the declaratory relief sought at [6(c)] above. I say that partly in light of the remedy to which I have already found the applicant entitled, and partly because I am not persuaded that a declaration to that effect has any utility given the practice is now published in the slightly different form and in light of what I say about that at [92] above.
Ground 3(e) - the practice is irrational
111. I have dealt with this at [91(d)] above on the basis of the inconsistency of the unpublished practice with published policy. Declaratory relief follows. For that reason, it is not necessary for me to deal with the other arguments pursued under this sub-ground, most of which flow from the operation of the practice as a rigid one. For the avoidance of doubt, I also address briefly the relief sought in relation to the now published practice at [113] below, and there was nothing arising from the applicant’s submissions on Ground 3(e) which changes that. The references to ‘short grants of leave’ and the submissions arguing against the rationality of those has to be set in the context of VTS leave which, under the Rules, can only ever be for a period of 30 months. I have set out above the view of Dr Curry and the HBF about that, but the lawfulness of Appendix VTS is not the policy under challenge before me.
Remedies
112. For the reasons set out above, the applicant is entitled to the declaratory relief sought at [6(a)] above.
113. I have mentioned at [50]-[51] above the reasons why it may not be open to me to grant relief to the policy as it now stands (published). In any event, given what I have said above about Grounds 3(b) as it relates to the published practice [92], and my findings on Grounds (c) and (d), all of which are also material to 3(e), I do not find a basis to grant the relief sought at [6(b)] above insofar as that relief refers to the practice (not just the unpublished practice).
114. As the decision in relation to the applicant is no longer under challenge, I do not find it is open to me to grant relief as sought at (ii) of the original grounds (see [7] above).
115. The parties are to draw up an order reflecting my decision and addressing the usual supplementary matters.
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Postscript
116. The respondent has sought permission to appeal to the Court of Appeal. I refuse the application for the following reasons.
117. Paragraph 2 is not arguable as the judgment, read as a whole, did not consider that the respondent was required to assess the necessity for treatment in the absence of any medical evidence but to take a view in light of all the available information including any medical evidence.
118. Paragraph 3 is not arguable because it conflates considerations taken under the published policy and those under the unpublished practice whereas the section cited from [91(a)] of the judgment refers specifically to the unpublished practice.
119. Paragraph 4 does not reveal an arguable contradiction in the judgment because [100]-[101] refer to the ability to renew a grant of leave, not the duration of a grant of leave.
120. Paragraph 5 is not arguable because [91(d)] when read in light of the judgment as a whole explains why the evidence about the unpublished practice does prescribe a duration.
121. Contrary to paragraph 7, it not arguable that the respondent’s submissions were overlooked when they were expressly set out (as the grounds accept) but unarguably sufficient reasons were given for not agreeing with them.
122. Paragraph 8 is not arguable because as set out at [92] of the judgment, the published practice differs in a key respect from the unpublished one so there is no arguable inconsistency in the findings.
123. Paragraph 9 is not arguable because the reasoning given at [91(d)], is sufficient when the judgment is read as a whole.