The former home secretaries Priti Patel and Suella Braverman have been accused of operating a secret policy to deny 1,600 victims of trafficking leave to remain in the UK, despite a court ruling that they were entitled to stay.
A landmark high court ruling in November 2021 concluded confirmed victims of trafficking who had claimed asylum and were waiting for a decision should be automatically given permission to stay in the UK, known as discretionary leave.
At a hearing on Wednesday, the Home Office was accused of unlawfully failing to issue these decisions, leaving them in limbo, unable to access the right to work, study or claim mainstream benefits.
The 22-year-old trafficking victim, known as XY, is being represented by the charity Asylum Aid, which brought the case that his human rights had been breached. He escaped traffickers in Albania who forced him to sell drugs for them when he was 16 and threatened to harm his family if he refused to comply. As a result of the policy he was denied leave to remain for almost 18 months, his lawyers claimed.
In written arguments to the court, the counsel for the home secretary argued that they had simply been waiting for the outcome of appeals to the court of appeal and supreme court against the landmark November 2021 ruling before acting.
“This case is about delay. It is not a case about secret or unpublished policies,” Cathryn McGahey, KC for the home secretary, told the court.
Internal Home Office documents relating to the case, released to the Guardian, show officials recommended that the decision of whether to grant leave to remain to the group should be put “on hold”. An email from a Home Office official dated 8 July 2022 stated: “All discretionary leave decisions affected by (the November 2021 ruling) currently remain on hold.”
Internal emails show officials were keen that the delay received no publicity. An email dated 11 January 2023 states: “We will have to carefully consider the reputational impact of this change in policy and how this is viewed by both stakeholders and senior parliamentarians, specifically the right honourable Sir Iain Duncan Smith and the right honourable Mrs Theresa May.” Both May and Duncan Smith have worked to introduce laws to protect victims of trafficking.
When a question was asked from Braverman’s office in an email on 14 February 2023 about whether “doing nothing” was an option, one official said: “Our consolidated view is that is not an option we can recommend to ministers. We continue to see judicial reviews lodged on grounds linked to the delay in implementing the … judgment.”
The note added that 63 judicial reviews had been lodged to date with 96 pre-action protocol letters linked to the Home Office’s failure to implement the leave to remain for trafficking victims awaiting the outcome of an asylum claim following the landmark October 2021 ruling.
Counsel for XY, Chris Buttler KC told the court on Wednesday: “It’s unlawful to operate an unpublished policy which is inconsistent with a public policy.”