Tribunal decisions

The decision

Case No: JR-2025-LON-003693
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR

2 October 2026

Before:

UPPER TRIBUNAL JUDGE BLUNDELL

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Between:

THE KING
on the application of
MM
Applicant
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THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

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Emma Fitzsimons
(instructed by Duncan Lewis Solicitors), for the applicant

Joshua Yetman
(instructed by the Government Legal Department) for the respondent

Hearing date: 18 August 2026

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J U D G M E N T

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JUDGE BLUNDELL:
1. By this application for judicial review, the applicant challenges the respondent’s decision to refuse to consider his eligibility for leave to remain as a victim of trafficking. The respondent refused to do so because she had already considered and reconsidered the applicant’s eligibility for such leave. The applicant submits that the respondent’s decision and the policy which informed it were unlawful.
Background
2. The applicant is a Syrian national who was born in 2001. He entered the United Kingdom unlawfully by small boat on 16 May 2022 and claimed asylum the following day.
3. The protection claim was initially deemed inadmissible on safe third country grounds because the respondent intended to remove the applicant to Rwanda. That decision was subsequently revisited in light of AAA (Syria) & Ors v SSHD [2023] UKSC 42; [2023] 1 WLR 4433. (The protection claim was ultimately refused on 17 April 2026, and an appeal against the refusal is now pending before the First-tier Tribunal.)
4. On 1 October 2022, the Home Office’s Immigration Enforcement Competent Authority (“IECA”) decided on conclusive grounds that the applicant was a victim of trafficking. That decision was based on the applicant’s assertion that he was subject to forced labour in Sudan and Libya, whilst en route to the United Kingdom.
5. On 1 November 2022, the IECA decided not to grant the applicant leave to remain under the Modern Slavery Discretionary Leave (DL) policy. The decision noted that the applicant was not seeking compensation or assisting the police with any ongoing enquiries and it did not accept that leave was necessary as a result of his personal circumstances.
6. The decision to refuse leave to remain was challenged by way of a letter before action and, on 5 January 2023, the IECA agreed to reconsider the decision in light of any additional material supplied before 16 February 2023.
7. The respondent refused to grant leave to remain for a second time on 13 March 2023. There was a further letter before action and, on 5 May 2023, the respondent agreed for a second time to reconsider the case.
8. On 16 July 2024, the respondent refused to grant what has been described in the papers as “KTT leave”, which is a reference to the decision of the Court of Appeal in KTT & EOG v SSHD (Aire Centre Intervening) [2022] EWCA Civ 307; [2023] QB 351. That decision was made on the basis that the applicant’s asylum claim did not relate in material part to a risk of re-trafficking.
9. On 14 November 2024, the respondent decided for a third time not to grant leave. This decision was made under an Appendix to the Immigration Rules entitled Appendix: Temporary Permission to Stay for Victims of Human Trafficking or Slavery. I shall refer to that appendix as “Appendix VTS” and to leave granted under it as “VTS leave”. Again, it was noted that the applicant was not seeking compensation or assisting the police with enquiries, and the decision focused on whether it was necessary to grant leave as a result of the applicant’s personal circumstances. The respondent did not accept that leave was necessary on medical grounds because the applicant was not “currently taking any medication or therapies” for his mental health problems.
10. The applicant was informed that he was entitled to one reconsideration of the decision of 14 November 2024. Reconsideration was sought on 28 November 2024 but, on 9 December 2024, the respondent rejected the application on the basis that the submissions made no material difference.
The Submissions Made to the Respondent
11. Nothing material then occurred until 29 May 2025. On that date, Duncan Lewis Solicitors, who have acted for the applicant throughout, wrote to the IECA “to request the grant … of Temporary Permission to Stay as a Victim of Human Trafficking (VTS)”. The eight page letter made detailed submissions about the applicant’s mental health. An updated medico-legal report from a consultant psychiatrist, Professor Katona, was provided. It was submitted, with reference to section 65(2)(a) of the Nationality and Borders Act 20221 (“NABA”) that leave should be granted because it was “necessary for the purpose of assisting the person in their recovery from any physical or psychological harm arising from the relevant exploitation”. The letter ended with a conclusion which was expressed in these terms:
[29] A grant of Temporary Permission to Stay (VTS) to A is necessary to assist him in his recovery from psychological harm resulting from his experience as a victim of trafficking. This includes the need to receive adequate and effective treatment in the UK; ability to rely on familial support; to access support via the MSVCC contract that can facilitate A’s engagement with the relevant treatment; removal from the confines of the hostile environment with permission to work; and, access to mainstream benefits. This would also mitigate the current risk of suicide.

[30] It is also necessary to avoid exposing him to a real and immediate risk of being re-exploited in the UK or, if he were removed, in Syria.

[31] Failure to grant A a period of temporary leave to remain as a victim of trafficking would constitute a failure to apply VTS policy (including policy of complying with ECAT).

[32] Alternatively, it would constitute an unlawful exercise of the SSHD’s discretion section 3 of the Immigration Act 1971, in that it would be incompatible with the UK’s positive recovery and protective obligations under Article 4 ECHR.
The Decision Under Challenge
12. Those submissions were rejected by email on 18 July 2025. This is the decision under challenge before me. It provided materially as follows:
Thank you for the below correspondence. Your request for a reconsideration of the VTS decision dated 14/11/2024.

Your request has been declined as per VTS policy: “An individual may request one reconsideration of their permission to stay decision, within 30 calendar days of the decision”.

Your request for a reconsideration was previously rejected on 09/12/2024. During this time, no extensions have been requested, and your second reconsideration request is outside of the 30 day timeframe. Therefore, your request has been rejected.

In conclusion, the IECA maintain the VTS decision dated 14/11/2024 as your reconsideration request is outside of the 30 days.
13. Pre-action correspondence passed between the parties but the respondent maintained her stance, stating that it was “not incumbent on the SSHD to reconsider the VTS decision, and […] that discretion was applied in her response.” The respondent considered that there were “no exceptional circumstances which would warrant the use of discretion” and that the reconsideration request was in any event submitted “after the 30-day timeframe”. The respondent considered that she had discharged her duties under ECAT and Article 4 ECHR.
The Application for Judicial Review
14. This claim was lodged on 17 October 2025. The grounds were settled by Ms Fitzsimons of counsel. As originally formulated, there were three grounds. It was contended that the decision of 18 July 2025 was (i) irrational; (ii) inadequately reasoned; and (iii) in breach of Article 4 ECHR.
15. Permission was refused on the papers but granted (on all three grounds) at an oral hearing on 31 March 2026.
16. The respondent filed Detailed Grounds of Defence (“DGD”), settled by Mr Yetman of counsel, on 13 May 2026. Appended to the DGD was a witness statement made by Isla Howarth, the Technical Specialist at IECA who made the decision under challenge.
17. On 27 May 2026, the applicant’s solicitors filed a Reply to the DGD and an application to amend the grounds in light of Ms Howarth’s statement. The applicant sought to add an additional ground, which was that the VTS Policy unlawfully fettered the respondent’s discretion or was Gillick2 unlawful.
18. The respondent opposed that application in submissions which were filed on 4 June 2026.
19. On 2 July 2026, I granted the applicant’s application for permission to amend the grounds, noting that such a late amendment was undesirable but that the applicant was entitled to claim that he had been somewhat wrongfooted by the way in which the claim had been defended before the DGD. I ordered that any amended DGD should be filed by 20 July 2026, and I amended the trial timetable so as to ensure that the listing on 18 August 2026 remained effective.
20. In preparation for the hearing, the applicant’s solicitors filed a composite trial bundle of 479 pages and an agreed authorities bundle of 1532 pages. Ms Fitzsimons and Mr Yetman filed helpful skeleton arguments in advance of the hearing.
Submissions
21. The submissions made before me were, in summary, as follows. In the interests of brevity, I have largely shorn the submissions of reference to authority, although I will consider some of the cases to which I was referred in the analysis which follows.
Applicant
22. Ms Fitzsimons submitted that the applicant’s case was very straightforward. The principal question for the tribunal to consider was whether the respondent had lawfully and rationally refused to exercise her residual discretion to grant leave to remain. That question fell to be answered in the negative.
23. Ms Fitzsimons recalled that the case spanned changes to the regime under which victims of trafficking were considered for leave to remain. They had originally been considered for Discretionary Leave under a policy. That had then been replaced by Appendix VTS. Section 65 of NABA put the system on a statutory footing. The background was in ECAT, and Parliament had instructed the Secretary of State to comply with Article 14 thereof.
24. Ms Fitzsimons made reference to the relevant provisions of NABA and of Appendix VTS before asking me to consider the salient parts of the relevant policy: Temporary Permission to Stay considerations for Victims of Human Trafficking or Slavery, version 7.0, as published on 9 June 2025. She then made reference to relevant aspects of the chronology, which I have endeavoured to reproduce above. In doing so, she alighted on the opinions expressed on the applicant by Ms Dawkins, a trafficking expert and psychotherapist; Professor Katona, the Medical Director of the Helen Bamber Foundation; and Ms Cowper, a support worker.
25. Ms Fitzsimons asked me to note what was said at [20] of Ms Howarth’s statement:
At no point did I consider exercising discretion to allow a second reconsideration of the applicant’s VTS refusal, nor was I required to do so. Nowhere in the applicant’s correspondence of 29 May 2025 did he invite IECA to depart from the policy or acknowledge that the policy only allows one reconsideration.
26. The “straightforward” submission which was made by the applicant was that the respondent’s public law obligations required her to “do more”. The policy could not lawfully fetter the respondent’s statutory discretion to grant leave in response to a deserving case. I invited Ms Fitzsimons to address me on what was said by Lord Sales and Lord Burnett CJ at [46] of R (A) v SSHD [2021] UKSC 37; [2021] 1 WLR 3931, and to make clear which of the three categories of unlawfulness was said to apply. She sought to submit that the policy fell into the second or third category but recognised that she was in some difficulty in either respect.
27. Ms Fitzsimons submitted that the applicant was nevertheless able to succeed on the first or second ground. In substance, the applicant’s representatives had asked the respondent to consider the case outside the Immigration Rules and the policy, and she had impermissibly shut her mind to that possibility, and to the consequences of such a refusal.
28. In relation to the third ground, Ms Fitzsimons submitted that the decision was in breach of the respondent’s obligation to take protective measures under Article 4 ECHR. The respondent submitted that she was not required to consider whether there was a risk of re-trafficking. Whilst that was correct under Appendix VTS, it could not be correct when cases were considered outside the Immigration Rules because the respondent was required not to act unlawfully under the ECHR.
29. The respondent had invited the tribunal to refuse relief under section 31(2A) of the Senior Courts Act 1981 but it was not appropriate for her to state in a witness statement that the applicant could not have succeeded in any event. These were the kind of “self-interested speculations” which the Divisional Court had said should be approached with a degree of scepticism.
Respondent
30. For the respondent, Mr Yetman submitted that this was a procedural, not a substantive case, and that the real question was as to the applicable procedural regime.
31. It was clear, Mr Yetman submitted, that the guidance was lawful. It did not actually or impliedly reject the existence of a discretion outside the Immigration Rules.
32. The applicant had framed his challenge inappropriately. The respondent’s decision was not the outright rejection of a well-supported application. The relevant chronology showed that the respondent had considered the application for leave on a number of occasions, and there had been no challenge to the decision made at the end of 2024. If the applicant intended to submit additional medical evidence, the proper course was to write to the respondent to alert her to that and to seek an extension of time before the expiry of the 30 day period.
33. It was very significant, in the respondent’s submission, that the representations made by the applicant in May 2025 contained no express request for the respondent to depart from the terms of the Immigration Rules and/or the policy. Equally, it was very significant that there was no explanation for the delay. The letter was just an application for leave without any attempt to engage with the reconsideration criteria.
34. Mr Yetman submitted that there was some disagreement as to the law. In the respondent’s submission, section 65 of NABA had “carved out” Article 14(1)(a) of ECAT, such that risk of re-trafficking was no longer a material consideration. It was also notable that s65(4)(a) provided that leave would not be necessary if any need for assistance could be met in the country of nationality or removal. The statutory regime was “adjacent” to the NRM. The Rules and Guidance made under the Immigration Act 1971 were of assistance, by reference to s65(11) NABA.
35. The Rules had been laid before Parliament. The VTS Guidance was consistent with the Rules. It was clear from the Rules themselves that a person who had been refused could not re-apply, but they were entitled to a single reconsideration. It was important not to emasculate that regime by permitting late and repeated applications for yet further reconsideration. It was notable that VTS 4.2 provided for “reconsideration of the decision” and there was no suggestion that there could be multiple reconsiderations.
36. The Guidance made clear that the respondent no longer granted leave in the circumstances described in Article 14(1)(a) and that had been described in recent authority as a distinct shift in policy. The applicant was wrong to submit that s65 represented a straightforward domestic adoption of Article 14 – the contrary was clearly correct, and there had been a narrowing of the domestic approach. EOG & KTT v SSHD had been decided before that shift, as was made clear in SSHD v S & Anor (Aire Centre Intervening) [2025] EWCA Civ 188.
37. The guidance was produced by the Secretary of State of her own volition – she had not been required by Parliament to produce it. The guidance provided for reconsideration in specific circumstances and entitled the respondent to reconsider a case even where it was not requested. There was the possibility of extending time in exceptional circumstances. If the applicant had sought an extension and explained the delay, discretion might have been exercised.
38. In relation to ground four, Mr Yetman submitted that the policy was not unlawful for the reasons put forward by the applicant. The respondent had been required to follow her published policy and there was no proper reason advanced to justify departure from it. The respondent accepted that there was a residual discretion but the question was whether it was irrational in public law terms for the respondent to refuse to consider it. It was relevant to consider the merits of the submissions made to the respondent but the risk of re-trafficking was no longer an issue and nothing more was required on the facts of this case. This was not a case in which the Secretary of State had merely “shut the door” from the outset; she had considered and reconsidered by the time the decision under challenge was made.
39. In response to my question about Behary & Anor v SSHD [2016] EWCA Civ 702; [2016] 4 WLR 136, Mr Yetman submitted that this was not a case in which there had been an express request for the Secretary of State to depart from her policy, and the facts of this case were not so striking that it was irrational for her to consider such a departure. The applicant had the benefit of professional assistance throughout.
40. The third ground was erroneous because Article 4 ECHR was not engaged. The proper forum for the consideration of such submissions was the appeal against the refusal of the protection claim.
41. Relief should in any event be refused under s31(2A) SCA 1981. There was weighty evidence to show that the outcome would not have been different even if the application had been reconsidered again. The applicant was still not receiving any treatment at the time of the representations.
Applicant’s Reply
42. In reply, Ms Fitzsimons submitted that the respondent was wrong, to a point, to paint this as a case in which the respondent had reconsidered on a number of occasions. She had, instead, agreed to reconsider twice in the face of threats of judicial review.
43. It was notable that the Rules were virtually silent about the modality of reconsideration. The disagreement as to section 65 and its relationship with Article 14(1)(a) of ECAT was arid; the applicant’s submission was that he met the criteria for leave in s65(2)(a). The correct test was not merely whether the applicant was in receipt of treatment, and Professor Katona had explained clearly why stability would be the bedrock for recovery.
44. The respondent’s reliance on policy could not rationally answer the complaint that she had not considered her obligations outside the policy. Ms Howarth’s witness statement revealed a clear public law error in confirming that she had not considered whether to depart from the policy. What was said in this case was not that the applicant would be at risk of trafficking in Syria, but that there was a risk of trafficking in the UK if he was not granted leave.
45. It was not established that acceptance of the applicant’s submissions would emasculate the policy. There were very specific facts in this case and the simple submission, on which the applicant continued to rely, was that the respondent was required to consider the merits of the submissions and consider whether to depart from her published policy.
46. I reserved judgment at the end of the submissions.
Legal Framework
47. The United Kingdom signed the European Convention against Trafficking in Human Beings in March 2007 and ratified it in December the following year. It came into force on 1 April 2009 but it remains unincorporated. It is only necessary for present purposes to reproduce part of Article 14:
(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;

(b) the competent authority considers that their stay is necessary for the purpose of their co-operation with the competent authorities in investigation or criminal proceedings.
48. Section 65 of the Nationality and Borders Act 2022 was brought into force on 30 January 2023. It provides materially 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,
(b) enabling the person to seek compensation in respect of the relevant exploitation, or
(c) enabling the person to co-operate with a public authority in connection with an investigation or criminal proceedings in respect of the relevant exploitation.

(3) …

(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);
(b) subsection (2)(b) if the Secretary of State considers that—
(i) the person is capable of seeking compensation from outside the United Kingdom, and
(ii) it would be reasonable for the person to do so in the circumstances.

(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).

(6) …

(7) …

(8) …

(9) …

(10) …

(11) This section is to be treated for the purposes of section 3 of the Immigration Act 1971 as if it were provision made by that Act.
49. Also on 30 January 2023, HC719 inserted Appendix VTS into the Immigration Rules. The preamble to the numbered Rules includes a paragraph in the following terms:
A confirmed victim as classified in VTS 1.1 (a), who has not been considered for permission to stay under this route, need not apply under this route, as for those in scope permission to stay will be automatically considered following a positive Conclusive Grounds decision. A confirmed victim who has been considered previously for permission to stay under this route or the Discretionary Leave for victims of Modern Slavery policy and has been refused permission to stay cannot apply or re-apply under this route.
50. VTS 3.1(a) restates the condition in section 65(2)(a) as an eligibility condition for leave. VTS 3.2 provides that:
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.
51. VTS 3.3 restates the condition in section 65(4)(a) NABA 2022 (leave not “necessary” within the meaning of section 65(2)(a) if the applicant’s need for assistance is capable of being met in a country or territory of which they are a national or citizen; or one to which they may be removed in accordance with an agreement with the UK).
52. VTS 4.2 provides that a confirmed victim is entitled to request reconsideration of the decision if their application is refused. 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”. VTS 5.2 confirms that any such grant will be subject to conditions permitting access to public funds, work and study (subject to the ATA condition in Appendix ATAS3).
53. The respondent has a published policy governing VTS leave. It is entitled “Temporary Permission to Stay for Victims of Human Trafficking or Slavery” and it was version 7.0 of that policy which was in effect at the time of the decision under challenge. In her amended Statement of Facts and Grounds, Ms Fitzsimons cited extensively from the policy but I propose to reproduce only a section which appears at page 32, where the policy says the following about the process of reconsideration:
An individual may request one reconsideration of their permission to stay decision, within 30 calendar days of the decision if:

• the individual believes that Immigration rules or policies weren’t followed correctly when the decision was made
• the application for VTS was successful but the individual believes expiry date or the purpose for granting temporary permission to stay is wrong
• the individual is able to provide new evidence relevant to their application, which was not available at the point the original consideration

The individual must be in the UK to make the request. The Competent Authorities still retain the right to reconsider decisions themselves (for example not requested by an individual). For decisions that have been made by the Competent Authorities this will be requested via an email to the decision-making unit. This information will be included on the notice of refusal letter for the applicant.
Analysis
54. I do not intend to consider Ms Fitzsimons’ grounds in order. The logical starting point, it seems to me, is the challenge to the lawfulness of the policy from which I have just cited, and in particular to the part of the policy which states in terms that there may be only one reconsideration of a permission to stay decision.
Ground four – the lawfulness of the VTS policy
55. Ms Fitzsimons contended in writing that the policy is unlawful because, on the construction for which she understood the respondent to contend, “it leaves no room for discretion outside the one reconsideration rule”. Mr Yetman also submitted - and I accept - that the policy is absolutely clear in drawing a “bright line of one reconsideration”, but he submitted that it was not unlawful on that account.
56. In order to evaluate the competing submissions, it is necessary to recall some well-established principles.
57. The first, as cited by Ms Fitzsimons, is that a public authority exercising a statutory discretion (such as that under s3 of the Immigration Act 1971 or s65 of NABA) may not fetter its discretion by adopting an overly rigid policy.
58. Mr Yetman obviously did not demur from that statement of the law, supported as it is by the learning cited at [74] of the SFG. The authorities were recently reviewed by Singh LJ (with whom Nicola Davies and Laing LJJ agreed) in R (AFA) & Ors v Secretaries of State for the Home Department and Defence [2025] EWCA Civ 825:
[46] Ground 2 is that the Respondents unlawfully fettered their discretion in devising and applying the policy. It is well established that the doctrine against fettering entails that, while a public authority is entitled to have a policy to govern the exercise of a discretionary power, and that policy may even in practice be tantamount to a "rule", it must not "shut its ears" and must always be "willing to listen" to an application that an exception to the policy should be made in a given case: see the decision of the House of Lords in British Oxygen Co Ltd v Minister of Technology [1971] AC 610, at 625 (Lord Reid). The policy must not be "inflexible and invariable" and must at least allow for the possibility that an exception to it may be made after "taking into account circumstances which are relevant to the particular case": see R v Secretary of State for the Home Department, ex p. Venables [1998] AC 407, at 496-7 (Lord Browne-Wilkinson).

[47] It is common ground that the doctrine of fettering only applies if there is a statutory discretion to be exercised. It cannot arise if the source of the power in question is the prerogative: see the decision of the Supreme Court in R (Sandiford) v Secretary of State for Foreign and Commonwealth Affairs [2014] UKSC 44; [2014] 1 WLR 2697.
59. The second principle is worth mentioning as a step in the reasoning process, although Ms Fitzsimons obviously does not (and could not, before the Upper Tribunal) challenge the lawfulness of Appendix VTS itself. It is that the Immigration Rules are not themselves subject to the non-fettering principle and that, where the Rules are expressed in mandatory terms, they are not for that reason ultra vires, nor are they to be read as operating other than in a mandatory manner. But the Rules do not restrict the exercise of the Secretary of State’s discretionary powers, in that she always has a residual discretion to consider an application made outside the Rules by someone who does not qualify under their requirements: R (AB) v SSHD [2018] EWCA Civ 383; [2018] Imm AR 1015, at [45], summarising what was said by Beatson LJ in R (Sayaniya) v UTIAC & SSHD [2016] EWCA Civ 85; [2016] 4 WLR 58.
60. The third, upon which Mr Yetman relies, is that when the non-fettering principle applies, it does not require that a policy cannot be expressed in unqualified terms: R (West Berkshire District Council) v Secretary of State for Communities and Local Government [2016] EWCA Civ 441, [2016] 1 WLR 3923, at [21], per Laws and Treacy LJJ. Laws and Treacy LJJ went on to state that it would “surely be idle and most likely confusing to require every policy statement to include a health warning in the shape of a reminder that the policy must be applied consistently with the rule against fettering discretion.”
61. With those principles, and particularly the last, in mind, it is rather difficult to see why the respondent’s policy on reconsideration is said to be unlawful. The Immigration Rules prevent a person from re-applying for VTS Leave and the policy permits only one reconsideration of an adverse decision but there is nothing in the policy which purports to prevent a decision maker granting leave outside the Rules if a victim of trafficking presents a deserving case outside that framework. In other words, the policy says nothing to suggest that it is not open to a decision maker to grant leave to a victim of trafficking even where they fall outside the terms of the Rules and the policy. The policy does not breach the rule against fettering, therefore.
62. Ms Fitzsimons also submitted that the policy was “Gillick unlawful”. As Lord Sales and Lord Burnett explained at [41] of A v SSHD [2021] UKSC 37; [2021] 1 WLR 3931, following a detailed analysis of the speeches in Gillick v West Norfolk and Wisbech Area Health Authority, the test set out by the Appellate Committee is “straightforward to apply”:
It calls for a comparison of what the relevant law requires and what a policy statement says regarding what a person should do. If the policy directs them to act in a way which contradicts the law it is unlawful. The courts are well placed to make a comparison of normative statements in the law and in the policy, as objectively construed. The test does not depend on a statistical analysis of the extent to which relevant actors might or might not fail to comply with their legal obligations…
63. I reminded Ms Fitzsimons in argument of the three types of case in which a policy might be found to be unlawful by reason of what it says or omits to say about the law, as set out at [46] of A v SSHD:
(i) where the policy includes a positive statement of law which is wrong and which will induce a person who follows the policy to breach their legal duty in some way (ie the type of case under consideration in Gillick);

(ii) where the authority which promulgates the policy does so pursuant to a duty to provide accurate advice about the law but fails to do so, either because of a misstatement of law or because of an omission to explain the legal position; and

(iii) where the authority, even though not under a duty to issue a policy, decides to promulgate one and in doing so purports in the policy to provide a full account of the legal position but fails to achieve that, either because of a specific misstatement of the law or because of an omission which has the effect that, read as a whole, the policy presents a misleading picture of the true legal position.
64. On reflection, Ms Fitzsimons did not seek to argue that the respondent’s policy fell into the first category. No doubt she recognised that the policy in question contains no positive statement of the law which is incorrect. Instead, she sought to argue that the policy fell into either the second or third categories described by Lord Sales and Lord Burnett. I am unable to accept either submission, however.
65. The policy in question was not promulgated pursuant to a duty to provide accurate advice about the law. The respondent chose to issue guidance but was not under any compulsion to do so. The position in that regard is to be contrasted, for example, with the Codes of Practice issued under Part VI of the Police and Criminal Evidence Act 1984 or the “Every Child Matters” guidance issued under section 55 of the Borders, Citizenship and Immigration Act 2009.
66. Nor does the policy purport to provide a full account of the legal position. It says nothing about the respondent’s ability to grant leave outside the Immigration Rules and there is no sense in which the policy, when read as whole, presents a misleading picture of the true legal position. It assists caseworkers considering and reconsidering applications for leave under Appendix VTS but it does not touch on the circumstances in which the discretion outside the Immigration Rules might be exercised.
67. Confronted with those difficulties, Ms Fitzsimons opted to say nothing more about her fourth ground and focused her fire on the first three grounds. I consider that to have been a wise choice; the expression of the policy in unqualified terms and the omission of any reference to the discretion to grant leave outside the Rules does not render the policy unlawful for the reasons I have given. Ground four must therefore fail.
68. Whilst the policy is lawful, it is nevertheless important for the respondent to keep in mind that there might be victims of trafficking who cannot be granted leave under the terms of the Immigration Rules but who present a compelling case for leave under the terms of s65 or other relevant principles. By s3(1)(b) of the Immigration Act 1971 and s65(2) of NABA, Parliament has conferred a statutory discretion upon the Secretary of State and she may not shut her ears to a relevant claim for leave to remain on account of the fact that the applicant cannot meet the terms of the Immigration Rules. As Mr Yetman submits, the Rules impose a strict and immovable limit of one reconsideration (“a singular route, as opposed to two, or more bites of the cherry”), yet there might obviously be cases in which a person who has taken all of their bites is nevertheless able to make a compelling case that they should be granted leave outside the Rules.
69. Consider, for example, a confirmed victim of trafficking who has been refused leave on the basis that their need for medical assistance is capable of being met in their country of origin. Upon that decision being upheld on reconsideration, that individual cannot, on the respondent’s case, ever succeed in a subsequent request for leave to remain under Appendix VTS. Were they subsequently to become the central witness for the prosecution in a trafficking case, and it was attested by a senior police officer that their stay was necessary to enable them to co-operate with the police in connection with those criminal proceedings, they would have no claim under the Immigration Rules because of what Mr Yetman describes as the “bright line of one reconsideration”. As put at [18] of the Detailed Grounds of Defence, such a person is “stuck with this adverse determination”.
70. Such a person could therefore only request leave outside the Rules, under section 65 of NABA or the wide discretionary power in s3(1)(b) of the Immigration Act 19714.
Grounds One, Two and Three – Irrationality, Reason and Article 4 ECHR
71. By the first three grounds, the applicant contends that the respondent’s refusal to consider the application for leave was irrational, inadequately reasoned and in breach of Article 4 ECHR. I intend to consider these three grounds together for reasons which will shortly become apparent. In order to do so, it is necessary to make some observations about the letter which was sent by Duncan Lewis to the Secretary of State on 29 May 2025.
72. Firstly, the description of that letter in the index to the trial bundle is inaccurate. It is said in the index to be “Representations seeking reconsideration of VTS Refusal” but there was no reference in that letter to a request for reconsideration, or for a second reconsideration of the refusal of VTS leave.
73. The second is that the letter focused primarily on the terms of NABA, rather than on the terms of the Immigration Rules or the published policy.
74. The third is that although submissions were made about the correctness of the previous decisions made by the Secretary of State, the principal focus of the letter was on the applicant’s circumstances at the end of May 2025. Particular reference was made to the applicant’s worsening mental health and his need for treatment and stability, as described in the detailed report provided by Professor Katona dated 29 May 2025.
75. The fourth relevant aspect of the letter is that it does not only make reference to NABA and to ECAT; submissions were also made about the “Article 4 protection duty” and it was submitted at [30] that leave was “necessary to avoid exposing [MM] to a real and immediate risk of being exploited in the UK or, if he were removed, in Syria.”
76. The fifth point about the letter is that it made express reference to the respondent’s discretion and to s3 of the Immigration Act 1971 at [32].
77. The decision maker, Ms Howarth, makes clear in her witness statement that she did not “consider exercising discretion to allow a second reconsideration” because the applicant had neither invited the respondent to depart from the policy nor acknowledged that the policy “only allows one reconsideration”. It is common ground, therefore, that the respondent refused to consider whether she should exercise her discretion outside the Rules. In light of the submissions which were made to the Secretary of State by the applicant’s solicitors, I consider that to have been unlawful for each of the reasons given by Ms Fitzsimons. My reasons for so concluding are as follows.
78. The respondent is obliged to consider granting leave outside the Rules when expressly asked to do so or where the facts are so striking that it would be irrational in a public law sense not to consider the grant of leave, or at least seek clarification from the applicant whether he was seeking such leave: Behary v SSHD, at [39].
79. I do not accept Mr Yetman’s submission that the respondent was not requested to consider exercising her discretion outside the Immigration Rules. The letter made reference to the respondent’s discretion at [32], and it referred to s3 of the Immigration Act 1971. That was evidently a request for leave outside the Rules. Even if I am wrong in that, it is necessary to consider the rest of the letter with a degree of common sense.
80. The Immigration Rules expressly prohibited the applicant from re-applying under Appendix VTS, as at [49] above. The respondent’s published policy expressly prohibited the applicant making more than one request for reconsideration, as at [53] above. The applicant’s solicitors did not make a single reference to the previous decision being reconsidered, therefore, but they provided updated expert evidence and made extensive reference to the relevant provisions of NABA and to ECAT. More importantly, there was express reference to the respondent’s obligations under the ECHR and to the respondent’s discretion.
81. On any rational view, therefore, the applicant’s solicitors made two submissions: (i) that the applicant’s mental health had fundamentally deteriorated since the last decision, such that he now qualified for leave under the criteria in s65(2)(a) of NABA; and (ii) that there was a risk of exploitation in the UK, such that the respondent would breach the protection duty in Article 4 ECHR in the event that she did not exercise her discretion to grant leave under s3 of the Immigration Act 1971. For the reasons I have given, neither of those submissions could be considered within the framework provided by the Immigration Rules, and it was obviously incumbent on the respondent to consider whether to depart from that framework so as to do justice to the submissions made. As Ms Fitzsimons submitted, “something more” was required. The respondent was entitled to express the Rules and the policy in unqualified terms, as I have explained, but she was required not to shut her ears to claims falling outside those policies. As Singh LJ put it at [59] of Hippolyte v SSHD [2025] EWCA Civ 1493, she must at least be willing to consider whatever it is that an applicant wishes to say to her.
82. Whatever else was said by the applicant, it was incumbent on the respondent to turn her mind to the submissions made in relation to Article 4 ECHR. Mr Yetman submitted that this was a human rights claim which fell to be considered in the context of the applicant’s protection claim and any appeal which followed. Had the applicant’s submissions concerned the risk of trafficking in Syria, I would have agreed. That would have been a human rights claim as defined in s113(1) of the Nationality, Immigration and Asylum Act 2002: “a claim made by a person to the Secretary of State […] that to remove the person from or require him to leave the United Kingdom or to refuse him entry into the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998”. Any such claim was to be considered alongside the applicant’s protection claim, and the refusal of any such claim could be raised as a ground of appeal before the First-tier Tribunal (assuming, of course, that it was not certified under section 94 of the Nationality, Immigration and Asylum Act 2002).
83. But the applicant’s human rights submissions did not concern only the prospect of his removal from the United Kingdom to Syria. It was submitted in terms that the applicant was at risk of exploitation in the United Kingdom and that a refusal of leave “would be incompatible with the UK’s positive recovery and protective obligations under Article 4 ECHR.” This, in my judgment, was a submission which necessarily required the respondent to consider whether to consider granting leave outside the Immigration Rules. That was what the respondent was invited to do, hence the reference to discretion and s3 of the Immigration Act 1971 at [32] of the representations.
84. Article 4 ECHR is an unqualified right. It prohibits slavery and forced labour. Whilst it is expressed in very general terms, it is well established that it imposes certain positive obligations as regards trafficking. The extent of those obligations was considered in Rantsev v Cyprus & Russia (2010) 51 EHRR 1 and other Strasbourg authorities cited by Ms Fitzsimons. It is not necessary to undertake a detailed review of those authorities in this judgment, since Underhill LJ undertook that review at [13]-[18] of TDT v SSHD [2018] EWCA Civ 1395; [2018] 1 WLR 4922. At [17], he summarised the duties which the ECtHR had held to be imposed by Article 4 as regards trafficking in the following way:
(a) a general duty to implement measures to combat trafficking – "the systems duty";
(b) a duty to take steps to protect individual victims of trafficking – "the protection duty" (sometimes called "the operational duty");
(c) a duty to investigate situations of potential trafficking – "the investigation duty" (sometimes called "the procedural duty").
85. TDT was concerned with the protection duty. At [18], Underhill LJ explained that the duty was triggered “where it is "demonstrated that the State authorities were aware, or ought to have been aware, of circumstances giving rise to a credible suspicion that an identified individual had been, or was at real and immediate risk of being, trafficked".
86. It is to be noted that the submissions made to the Secretary of State in May 2025 made express reference to there being “a real and immediate risk of [MM] being re-exploited in the UK”. It could not have been much clearer from the terms of the letter that the applicant invoked the protection duty as part of his request for leave to remain. Whether or not the claim to VTS leave had previously been considered, and whether or not the applicant had made these submissions outside the thirty day reconsideration window in the policy, the respondent was obliged to turn her mind to this issue.
87. The respondent has put in place a detailed, mandatory framework in the VTS Rules and the accompanying policy but, as was explained in AB v SSHD and Hippolyte v SSHD "the Rules do not restrict the exercise of the Secretary of State's discretionary powers in that she always has a residual discretion to consider an application made outside the Rules by someone who does not qualify under them" and "the exercise of this residual discretion is subject to the 'non-fettering' principle".
88. Therefore, it did not suffice for the respondent simply to state that the applicant’s submissions were made too late and that he had already exhausted his right to a single reconsideration. On any rational view, the applicant’s solicitors had made detailed submissions that leave should be granted in the exercise of the Secretary of State’s discretion and it was incumbent on the Secretary of State, on conventional principles, not to shut her ears to that request and to consider whether to exercise that discretion. Her failure to do so was irrational, inadequately reasoned and represented a failure to consider the protection duty in Article 4 ECHR.
Section 31(2A) of the Senior Courts Act 1981
89. By s15(5) of the Tribunals, Courts and Enforcement Act 2007, s31(2A) applies to the Upper Tribunal as it does to the High Court. Section 31(2A) requires the High Court to refuse to grant relief on an application for judicial review if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.
90. Guidance has been given on the operation of s31(2A) in R (Plan B Earth) v Secretary of State for Transport [2020] EWCA Civ 214; [2020] PTSR 1446, R (Bradbury) v Brecon Beacons National Park Authority [2025] EWCA Civ 489; [2025] 4 WLR 58 and R (Greenfields (IOW) Ltd) v Isle of Wight Council [2025] EWCA Civ 488; [2025] PTSR 2013. At [74] of the second of those cases, Lewis LJ underlined that s31(2A) is “a high test to surmount” and that:
The section emphatically does not require the court to embark upon an exercise where the error is left out of account and the court tries to predict what the public body would have done if the error had not been made. Approaching section 31(2A) in that way would run the risk of the court forming a view on the merits and deciding if it thinks the public body would reach that view if it had not made the error. Rather, the focus should be on the impact of the error on the decision-making process that the decision-maker undertook to ascertain whether it is highly likely that the decision that the public body took would not have been substantially different if the error had not occurred.
[emphasis added]
91. The effect of those authorities was considered in an immigration context not dissimilar to the present case in Hippolyte v SSHD, to which I have already referred.
92. Ms Hippolyte had applied for leave to remain under the Secretary of State’s Windrush scheme but she could not meet the terms of the scheme because she had a relevant period of absence from the United Kingdom.
93. At first instance, Sheldon J accepted that the Secretary of State had failed to consider whether to exercise her discretion under s3(1)(b) of the Immigration Act 1971 to waive the continuous residence requirement in the Windrush Scheme and that this was unlawful because it contravened the non-fettering principle. However, applying s31(2A), the judge refused relief on the basis that it was highly likely that the outcome for the claimant would not have been substantially different had the conduct complained of not occurred. Whilst there was no witness statement from an official in the Home Office setting out what the decision would have been, he concluded that there was a good deal of material available to the court from which inferences could be drawn as to what the decision was highly likely to have been if the Secretary of State had considered whether discretion should be exercised to disapply the continuous residence rule
94. Ms Hippolyte appealed against Sheldon J’s order, contending that he had been wrong to refuse relief on that basis. The Secretary of State sought to argue in a respondent’s notice that the judge had been wrong to conclude that the Secretary of State had failed to exercise her discretion and that she had not been required whether to do so in any event, since the appellant had not applied for leave to remain outside the scheme. Singh LJ (with whom Sir Andrew McFarlane P and Andrew LJ agreed) rejected those arguments at [47]-[68] before turning to the grounds of appeal in relation to the judge’s refusal of relief under s31(2A) at [69].
95. At [70]-[74] of his judgment, Singh LJ reviewed the authorities on s31(2A) to which I have already referred. Singh LJ concluded that the judge had been wrong to refuse relief; he had fallen “into the error which this Court has on a number of occasions warned against: he strayed into the "forbidden territory" of seeking to assess the merits of the Respondent's exercise of discretion.”: [75]. At [76]-[77], Singh LJ continued as follows:
[76] Particularly in a case where the very legal wrong which the court has held occurred is a failure to exercise a discretion at all (as distinct from, for example, a failure to take into account a relevant consideration where the discretion has undoubtedly been exercised), it seems to me that a court should be especially careful not to try to step into the shoes of the relevant public authority. The normal course will be for the court to quash the decision and remit the matter to the public authority to determine for itself. In that way the court maintains the important constitutional principle that the court does not assess the merits of a decision; it simply requires a public authority to act in accordance with law.

[77] I accept, of course, that courts have a duty to apply section 31(2A), since that is the will of Parliament. Nevertheless, the important guidance which this Court has given in a number of cases, including Plan B Earth, Bradbury and Greenfields, should enable first instance courts and tribunals to apply that provision without undue difficulty.
[emphasis added]
96. As Singh LJ went on to highlight, however, there was in that case no witness statement from an official explaining what would have been done if the error of law had not been committed. In this case, I have the witness statement made by Ms Howarth. Ms Howarth is a Technical Specialist within the IECA. Her statement of 12 May 2026 is helpfully sub-divided into five sections.
97. At [3]-[6], Ms Howarth explains that the VTS policy permits only one reconsideration and states that this is to ensure finality in decision-making. She refers to the significant number of cases considered by the IECA and to the substantial increase in that burden which would come about in the event that multiple reconsideration requests were permitted.
98. At [7]-[10], Ms Howarth sets out the history of this case, which I have already rehearsed in detail. At [11]-[14], she recalls that she made the decision under challenge and clarifies that “the reference to the timing of the reconsideration request … was unnecessary” because “the timing of the request was irrelevant to the outcome”. That was because the policy permits only one reconsideration.
99. At [15]-[21], Ms Howarth clarifies the reference to “discretion” in the response to the applicant’s pre-action letter, and at [20], she confirms that she had “at no point” considered exercising discretion. Then at, [22]-[25], Ms Howarth contends that any error was immaterial to the outcome for the following reasons:
[22] In the alternative to the above, and should the Applicant succeed in establishing that my email dated 18 July 2025 i) amounted to an irrational decision following a discretionary acceptance of the ability to reconsider a second time and/or ii) that this decision was inadequately reasoned, my view would have been the same had those errors not occurred. That is because the second reconsideration request would have been assessed in accordance with the published VTS reconsideration framework. A reconsideration is not a second substantive VTS decision, nor does it require a fresh evaluation of the full merits of the case or the wider consequences of refusal.

[23] My task as the decision-maker would have been to determine whether one of the prescribed grounds for reconsideration was met, namely whether the Immigration Rules or policy were not followed; whether an error had been made as to the purpose or length of leave where a grant was made; or whether genuinely new evidence, unavailable at the time of the original decision, had been provided.

[24] Matters relied upon by the Applicant as part of the second reconsideration request largely sought to advance a fresh substantive assessment of eligibility for VTS, rather than establishing that the reconsideration test was met. In particular, issues relating to ongoing vulnerability, treatment need, and mental health deterioration are matters relevant to substantive decision-making, as opposed to the reconsideration framework; similarly, risk on return and re-trafficking are considerations for removal or protection considerations, not VTS decisions in line with the guidance which states that, post-30 January 2023, VTS decisions do not require a separate assessment of re-trafficking risk.

[25] The guidance also makes clear that decision-makers are not required to undertake a holistic assessment of all possible forms of immigration leave, but only to consider whether the individual qualifies for VTS. The reconsideration decision therefore confined itself to the scope of the reconsideration framework, and no requirement arose to conduct a wider balancing exercise of prejudice or to reassess the substantive VTS criteria afresh.
100. Ms Fitzsimons submitted, with reference to the decision of the Divisional Court in R (PCSU) v Minister for the Cabinet Office [2017] EWHC 1787 (Admin); [2018] ICR 269 that I should approach this section of Ms Howarth’s statement with caution. In that case, the Minister was found to have acted unlawfully in failing to consult with the unions before introducing amendments which had the effect of reducing the benefits payable to civil servants in certain circumstances. For the Minister, Clive Sheldon QC (as he then was) nevertheless submitted that the omission was immaterial and that relief should be refused under s31(2A), and he relied on a statement from an official which predicted what would have come to pass if the unions had been consulted. Sales LJ (as he then was) rejected that argument for reasons he gave at [88]-[98]. Ms Fitzsimons places particular reliance on something said at [91], in which Sales LJ said of the witness statement that “self-interested speculations of this kind by an official of the public authority which has been found to have acted unlawfully should be approached with a degree of scepticism by a court.”
101. I accept that a degree of caution is required in considering such a statement but I consider there to be a more fundamental point in this case. Ms Howarth’s statement only serves to confirm the error made by the respondent in this case; it does not explain what would have happened if the Secretary of State had considered the representations of 29 May 2025 in the correct way and on their own terms. Ms Howarth states, correctly, that there had already been one reconsideration and that any further reconsideration of the earlier decision would have resulted in the same outcome but, as I have endeavoured to explain above, the applicant did not seek reconsideration of the earlier decision, and he did not invoke the reconsideration procedure in the Rules and the policy. He sought, instead, to make fresh submissions that he was entitled to leave to remain as a result of changed circumstances. Ms Howarth’s statement therefore sheds no light on the material question under s31(2A), which is what the Secretary of State would have done if she had considered whether to exercise her discretion outside the Rules.
102. Mr Yetman also submitted, however, that there was nothing in the representations which were made in May 2025 which could possibly have moved the Secretary of State to grant leave. I was taken to the decision of the Court of Appeal in SSHD v S (AIRE Centre intervening) [2025] EWCA Civ 188 and I note what was said by Andrews LJ at [125], in her short judgment agreeing with that of Laing LJ:
On the interpretation issue, it seems to me to be clear from sections 53 to 65 of the 2022 Act, as confirmed in the VTSP, that there was a deliberate policy shift in terms of how it was decided (by those with responsibility for making such decisions) that the UK would comply with its obligations under Article 14 of ECAT. Henceforth, temporary permission to stay would only be granted to VOTs in circumstances covered by Article 14(1)(b) of ECAT, and not in circumstances covered by Article 14(1)(a).
103. The unreported decision of UTJ Rimington in R (DC) v SSHD JR-2025-CDF-000035 is to similar effect.
104. Those dicta probably represent a complete answer to the suggestion at [18] of the representations made in May 2025: “Section 65(2)(a) clarifies but does not depart from, Article 14(1)(a) ECAT.” Had the applicant relied on a risk of re-trafficking in Syria, the deliberate policy shift considered in SSHD v S and R (DC) v SSHD would likely have been a complete answer to that too.
105. The remainder of the representations is not answered by anything said in the authorities, however, and I decline to venture into the “forbidden territory” of evaluating for myself the submissions which were made by the applicant in reliance on s65(2)(a) and Article 4 ECHR.
106. If I understood him correctly, Mr Yetman submitted at one point that the risk of re-trafficking is no longer a relevant consideration. Under s65 itself, that certainly seems to be so, but the “shift” which was effected in early 2023 was designed to remove the Secretary of State’s obligation in this context to consider the risk of re-trafficking in the country of origin, and not somehow to remove the Article 4 ECHR protective obligation on which the applicant relied in submitting that he was at real and immediate risk of modern slavery in the UK if he was not granted leave. No such risk was articulated in SSHD v S or R (DC) v SSHD.
107. The other authority cited by Mr Yetman in this connection – R (AYA) v SSHD [2026] EWHC 1742 (Admin) is also not directly on point, since no risk of exploitation in the UK was raised in that case. I do not consider anything said by Sheldon J in that case to preclude the grant of leave to remain so as to address a risk of exploitation within the UK’s territorial jurisdiction.
108. As Singh LJ explained in Hippolyte v SSHD, the court should be particularly careful about stepping into the shoes of the decision maker where, as here, a statutory discretion has not been exercised at all. It will be for the respondent to consider whether to grant the applicant leave to remain outside the Immigration Rules on account of his claimed recovery needs or claimed risk of exploitation in the United Kingdom. She may conclude that the protective mechanisms already available to the applicant as a confirmed victim of trafficking suffice to address those risks, and that leave is not therefore necessary. Or she may conclude that the difficulties already encountered by the applicant since he was recognised as a victim of trafficking point in favour of leave. These are the questions which should have been confronted by the decision maker in the exercise of her discretion outside the Rules. She failed to do so and it is not for the tribunal to step into her shoes to undertake that consideration.
109. It follows that the applicant fails on the fourth ground but succeeds on the remaining grounds. I invite the parties to agree the terms of the order which should follow.
Postscript
110. This judgment was circulated to the parties in draft on 24 September. I am grateful to counsel for the agreed list of typographical and other corrections which was provided promptly thereafter and have been reflected in this finalised version of the judgment.
Permission to Appeal
111. The Secretary of State seeks permission to appeal to the Court of Appeal. Mr Yetman advances three grounds. Ms Fitzsimons filed written submissions in response to the application. I refuse permission to appeal for the following reasons.
112. The respondent submits, firstly, that I erred in concluding that she was required to consider granting leave outside the Immigration Rules. This ground concerns the nature of the request which was made to the Secretary of State on 29 May 2025. That letter was either a wholly misconceived request for something which the respondent could not provide under the Immigration Rules and her published policy (a second reconsideration of a decision made more than 30 days previously) or it was a request for the respondent to grant leave in the exercise of her discretion outside the Immigration Rules.
113. For the reasons I have given, the respondent erred in concluding that the request fell into the former category; as Ms Fitzsimons submits in her response to the application for permission to appeal “This entire case was about the exercise of discretion outside the VTS policy.”
114. I have re-read the letter of 29 May 2025. I remain of the view that it contained an express request for the respondent to grant leave in the exercise of her discretion, and that nothing within that letter suggested that what the applicant sought was a further reconsideration of the previous decision.
115. For the reasons given in the judgment, the respondent erred in treating the applicant’s representations as nothing more than what Ms Howarth described as a request for “a second reconsideration of the applicant’s VTS refusal”. The respondent therefore erred on conventional public law grounds in shutting her ears to a request to depart from her published policy, and nothing said in the grounds establishes an arguable case to the contrary.
116. The Secretary of State submits, secondly, that I erred “in concluding that Article 4 ECHR was engaged in relation to a domestic risk of re-trafficking in the context of a VTS leave reconsideration”. This ground is unarguable for three reasons.
117. Firstly, as above, the context was not “a VTS leave reconsideration”; it was an application for leave which did not mention “reconsideration” but did submit distinctly and with reference to “a real and immediate risk of being re-exploited in the UK” that the respondent should grant leave under the protective duty in Article 4 ECHR.
118. Secondly, and contrary to the submissions made by the Secretary of State, the conclusion in the judgment was not “at odds” with the representations made or the underlying evidence. Whilst other matters were raised, the submissions relied clearly on the risk of exploitation in the UK. And, as Ms Fitzsimons notes in her response to the application for permission to appeal, the evidence (including Prof Katona’s report) “linked the immigration uncertainty and lack of status to the risk” of exploitation in the UK.
119. Thirdly, the respondent repeats the submission in the grounds of appeal that any Article 4 ECHR claim could be considered in the context of the pending appeal. That is straightforwardly wrong. The available ground of appeal is that “removal of the appellant from the United Kingdom would be unlawful under section 6 of the Human Rights Act” (s84(1)(c) of the Nationality, Immigration and Asylum Act 2002 refers). The FtT has no jurisdiction to consider whether the respondent is obliged by Article 4 ECHR to consider granting leave so as to reduce a risk of exploitation within the UK. That risk does not relate to removal, and the proper way for it to be raised was via submissions to the IECA. The applicant did so, but those submissions were not considered by the respondent. She fell into public law error in that respect, and it was not for the tribunal to consider the merits of the submissions made. The grounds fail to establish an arguable case against the conclusions in the judgment on this issue.
120. The Secretary of State’s third ground of appeal relates to s31(2A) of the Senior Courts Act 1981. As Mr Yetman recognises, this ground of appeal is contingent upon the first. If I was correct to hold that the respondent was invited to exercise her discretion outside the Rules and that she erred in law in failing to do so, he tacitly accepts that it was not for the tribunal to enter the “forbidden territory” of considering the applicant’s entitled for leave. For the reasons I have given above, I consider that I was unarguably correct to hold that the respondent misconstrued the letter of 29 May 2025 and failed, as a result, to consider whether to grant leave in the exercise of her discretion. This ground is consequently unarguable.
121. Permission to appeal is therefore refused.
Consequential Matters
122. There was substantial disagreement between the parties as to the terms of the order which should follow from the judgment. I am grateful to counsel for providing an order with alternative terms and to Ms Fitzsimons for producing written submissions. I propose to deal with the contested points relatively shortly.
123. I do not consider it appropriate to make a declaration that the respondent’s decision was in breach of Article 4 ECHR. No such declaration was originally sought and the terms of the judgment speak for themselves; the respondent erred in failing to consider the submissions which were made under Article 4 ECHR . I have not determined that the respondent necessarily owed the applicant the protective duty set out in the authorities, and a declaration in the terms sought by the applicant risks confusion in that regard.
124. The respondent must now consider the application which was made to her on 29 May 2025. The applicant is obviously able to augment those submissions with any additional evidence upon which he wishes to rely. The appropriate term is that, absent special circumstances, the Respondent will make a new decision in response to the Applicant’s correspondence dated 29 May 2025 within 3 months of hand down.
125. There was a clear claim for damages in the Statement of Facts and Grounds. The public law issues in this claim have now been resolved and the proper course is to transfer the claim to the County Court: R (on the application of T) v SSHD (Judicial review: damages claims) [2021] UKUT 320 (IAC). The course taken in R (RG, BAA and CAC) v SSHD JR-2025-LON-002577 establishes no contrary practice and the County Court is better equipped to consider such claims. Any settlement negotiations can take place whilst the claim is pending before the County Court.
126. As to costs, the starting point is obviously that the applicant is the winning party and should recover his costs. The authorities are equally clear, however, that the tribunal has a wide discretion, and that a different order as to costs may be appropriate where a party has succeeded on some issues and failed on others.
127. In this case, however, I accept the submission made by Ms Fitzsimons in reliance on Pigot v Environment Agency [2020] EWHC 1444 (Ch) that ground four covered much of the same legal territory as the first two grounds and that it would be difficult to disentangle the costs associated with that ground from the costs incurred elsewhere. The appropriate order in the circumstances is simply that the respondent shall pay the applicant’s costs, which are to be assessed if not agreed.
128. Ms Fitzsimons seeks a payment on account of costs of 40%. I accept Mr Yetman’s submission, however, that it is not appropriate to make such an order without any idea of the final sum claimed by the applicant. There is currently no schedule of costs and it would be an exercise in unwise speculation to order the respondent to pay 40% of an unknown sum. The applicant may instead seek a payment on account of costs after filing his schedule of costs.
129. There is no proper reason to order that the operative terms of the order be stayed. As Ms Fitzsimons observes in her written submissions, such stays are very much the exception, and the general rule is that the successful party is entitled to the fruits of its success. There are no “solid grounds” (DEFRA v Downs [2009] EWCA Civ 257) for a stay in this case, and the fact that the respondent intends to pursue an appeal to the Court of Appeal does not, in and of itself, provide such grounds.
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