1) The fact that:
(i) the European Convention Against Trafficking in Human Beings (‘ECAT’) is not a part of domestic law; but
(ii) the Secretary of State for the Home Department has decided to give effect to ECAT by means of a policy,
is not a reason for a court or tribunal to refuse to examine the lawfulness of that policy by reference to the judgments in R (A) v Secretary of State for the Home Department [2021] UKSC 37 (‘A’) and R (BF Eritrea) v Secretary of State for the Home Department [2021] UKSC 38 (‘BF (Eritrea)’).
(2) The ECAT and the policy guidance are not to be read together as merely a single policy of the respondent, which may be judicially scrutinised in its entirety and declared unlawful if found in any respect to be internally inconsistent. Despite not being incorporated into domestic law, ECAT is not itself a policy of the respondent, whose terms can be changed or abrogated by her. ECAT remains an international set of obligations. Accordingly, when seeking to establish the appropriate public law mechanism for assessing the lawfulness of the respondent’s policy guidance, it is essential to recognise that the respondent has chosen to give ECAT normative effect, with the policy guidance being a set of instructions to her caseworkers on how to make decisions that give effect to ECAT.
(3) This means that the lawfulness of the Secretary of State’s policy instructions to caseworkers on how to make decisions that give effect to ECAT falls to be determined by reference to the test (based on Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112), which was approved in A and BF (Eritrea), for assessing the lawfulness of policies that give guidance on the meaning and effect of the law; namely, can the policy be operated in a lawful way; or does it impose requirements which mean that a material and identifiable number of cases will be dealt with in an unlawful way?
Citations:
[2022] UKUT 39 (IAC)
Links:
Jurisdiction:
England and Wales
Immigration
Updated: 10 June 2022; Ref: scu.677732