SEFTON LSCB Safeguarding Policies and Procedures Online Manual

    Other issues relevant to immigration

    Last updated 18/05/2017

    Other applications under the Immigration Rules

    A grant of leave under the Immigration Rules is not considered automatically at the end of the National Referral Mechanism (NRM) process.

    If an individual wants to remain for a reason covered by the Immigration Rules they must make an application using the relevant application form and by paying any fee that applies.

    If a fee waiver policy applies to the relevant route, the applicant must fall under the criteria of that policy to be eligible.

    If an applicant has made an application before or during the NRM process under the Immigration Rules for example on the basis of work, study, family or private life this application should be processed in line with the relevant rules and guidance once a conclusive grounds decision has been taken.

    These applications will not be considered by the Competent Authority but by the relevant teams responsible for processing such cases.

    Applications under the Immigration Rules for Overseas Domestic Workers

    Section 53(1) of the Modern Slavery Act 2015 provides that the Immigration Rules must make provision for leave to remain in the UK to be granted to an overseas domestic worker who has been determined to be a victim of slavery or human trafficking.

    These new Immigration Rules in paragraphs 159I to 159K came into force on 18 October 2015 and amendments to them come into force on 6 April 2016.

    The purpose of these provisions is to enable overseas domestic workers who have been determined to be a victim of slavery or human trafficking to continue to work as a domestic worker, and to change employer, for a period of time in order to be able to earn some money to assist in rebuilding their lives when they return overseas.

    It is intended that these provisions will operate alongside, and not instead of, existing arrangements under which discretionary leave may be granted to those determined to be victims of slavery or human trafficking where there are compelling personal circumstances; to pursue a claim for compensation; or to assist with police enquiries.

    The Immigration Rules currently implement section 53(1) by creating a category of leave under which a person who has previously been granted leave to enter or remain as a domestic worker in a private or diplomatic household may be granted leave to remain for up to 6 months where they have been the subject of a positive conclusive grounds decision under the National Referral Mechanism. From 6 April 2016 the period of leave which may be granted under these provisions will be increased to 2 years.

    Where the initial period of leave granted is for less than the maximum possible, it will be possible to grant a subsequent extension of stay in this category to allow the individual to complete the maximum period in this category.

    A domestic worker granted leave to remain under these provisions will be permitted to take employment as a domestic worker in a private or diplomatic setting. It is assumed that a person applying under these provisions may not have a prior offer of employment at the point at which they apply.

    The rules remove the requirement for an application to be accompanied by a passport in cases where the applicant’s passport has been retained by their previous employer or other person in circumstances which have led to the applicant being the subject of a positive conclusive grounds decision.

    The General Grounds for Refusal of an application for leave to remain as set out in paragraph 322 of the Immigration Rules shall not apply to applications under this category, except insofar as they provide for refusal on grounds of making false representations in connection with the application; failure to produce within a reasonable time information required in support of the application or to comply with a request to attend an interview; where the applicant is the subject of a deportation order; and grounds relating to criminal conduct or a threat to security.

    If the Competent Authority makes a positive conclusive grounds decision and the victim is a person who has previously been granted leave to enter or remain as a domestic worker in a private or diplomatic household, they may apply under these rules.

    If the Competent Authority knows that a victim who is being a positive conclusive grounds decision may be eligible for these rules the Competent Authority should include a reference to the relevant rules and the time line for making an application under that rule in the positive conclusive grounds decision letter.

    A confirmed victim of trafficking or modern slavery must apply under the Overseas Domestic Worker rule within 28 days of a positive conclusive grounds decision from the NRM or other outstanding decision.

    Applications should be made on application form FLR(O). A fee is waived for an application under this rules provision.

    Applications under this Immigration Rule will not be considered by the Home Office Competent Authority but Temporary Migration caseworkers in Sheffield. The relevant team in Sheffield will, when in receipt of an application under the new Rules, check with the Competent Authority that the latter has no outstanding action in respect of the applicant such as an outstanding NRM decision, discretionary leave decision or asylum decision before processing the application.

    Where a victim who is eligible for the new overseas domestic worker rule receives a positive conclusive grounds decision, the Competent Authority should proceed to undertake a discretionary leave consideration. However if the victim falls for refusal under the discretionary leave policy set out in this guidance, it is open to the victim to then apply under the new overseas domestic worker rule for victims of trafficking/modern slavery if they are eligible. When notifying the victim that they do not qualify for discretionary leave as the criteria are not met, the Competent Authority should notify any relevant victim about the existence of the overseas domestic worker rule for victims of trafficking/modern slavery.

    If the victim who is being considered by the NRM applies under the new overseas domestic worker rule for victims of trafficking/modern slavery before they receive either a positive or negative conclusive grounds decision or a discretionary leave consideration from the Competent Authority, temporary migration caseworkers should not proceed to take a decision on the application as an overseas domestic worker until all NRM decisions including any discretionary consideration have concluded.

    If a victim has applied under the new overseas domestic worker rule for victims of trafficking/modern slavery, if they have a pending asylum claim, that asylum claim should be considered first, before any application under the new overseas domestic worker rule is processed.

    If the victim has been granted leave or refused leave under the new overseas domestic worker rule for victims of trafficking/modern slavery there is no bar to them seeking discretionary leave based on the criteria set out in this guidance when their leave under those Immigration Rules has expired, or when their application for leave under those Immigration Rules is refused – eg if they are now pursuing their traffickers for compensation. They will need to apply to the Home Office Competent Authority directly seeking a fresh discretionary leave consideration.

    No enforcement action should be taken against such an overseas domestic worker in respect of his or her remaining in the United Kingdom beyond the time limited by his or her leave to enter or remain, or breaching a condition of that leave relating to his or her employment, if he or she did so because of the matters relied on as slavery or human trafficking. Statutory guidance on the issue of enforcement action in such cases can be found on Horizon.

    In Third Country Unit cases if they refuse and certify an asylum claim but the person applies under the new Overseas Domestic worker rule, the Overseas Domestic worker application would act as barrier to removal whilst that application was considered. Casework guidance on the rule can be found on Horizon.

    Where the victim may qualify for more than one type of leave

    If a victim has a positive conclusive grounds decision and has applied for, and qualifies for more than one type of leave, the Home Office must issue the more generous grant of leave.

    Granting leave in Criminal Casework

    A potential or confirmed victim of human trafficking or modern slavery might request leave in a criminal case. Where the Competent Authority is Criminal Casework, leave can only be granted with the authority of the Grade 3 who must give authority for deportation not to be pursued.

    Granting leave to children after the NRM process has concluded

    If a child found to be a victim of human trafficking or modern slavery applies for any leave to remain the issue of children’s best interests must be considered before deciding whether to grant leave.

    Children who have received a positive conclusive grounds decision (ie that they are a victim of human trafficking or modern slavery) have a number of different pathways:

    • they can be considered for a grant of discretionary leave to remain under the criteria in When to grant discretionary leave after a positive conclusive grounds decision
    • if they have made a claim for asylum this will be processed at an appropriate time

    Requests for indefinite leave to remain

    There is no requirement under the European Convention to issue indefinite leave to remain (ILR) to confirmed victims and the threshold for a grant of ILR outside the Immigration Rules is a high one.

    Any request for ILR from a person who has had a conclusive grounds decision from the NRM should be considered in line with the approach to ILR set out in the discretionary leave guidance. Every case will be considered on its merits.

    Where a person is not eligible for a grant of leave after a Conclusive Grounds decision

    Where a conclusive grounds decision is made (whether positive or negative) and the person is not eligible for a grant of leave they should be offered assistance in making a voluntary return.

    Normal immigration procedures will apply as there will no longer be a barrier to removal on the grounds of human trafficking or modern slavery. Any other reasons that are raised must be handled in line with existing procedures for handling further representations.

    Victims who do not have a right to remain in the UK are expected to return home.

    The Home Office must however give consideration to Article 16(2) of the Council of Europe Convention on Action against Trafficking in Human Beings which states:

    ‘When a Party returns a victim to another State, such return shall be with due regard for the rights, safety and dignity of that person and for the status of any legal proceedings related to the fact that the person is a victim, and shall preferably be voluntary.’

    Victims who are assisting with police enquiries from abroad

    There may be some people who have expressed a willingness to assist the police with their enquiries but who still wish to return home. In these situations the Home Office Competent Authority must consider:

    • whether the person could help the police and participate in any future legal proceedings remotely (from overseas)
    • if they will require temporary leave to return to the UK

    Where such a person is conclusively found to be a victim of trafficking or modern slavery, you must:

    • issue the positive conclusive decision to the person (or their appointed representative) using decision letter UKBA NRM 07 (ICD.4055 on CID Doc Gen)
    • notify all relevant parties and update CID with the outcome
    • arrange for any outstanding immigration activities to be completed in line with existing immigration procedures
    • advise the person about Assisted Voluntary Returns

    Is there an Immigration right of appeal relating to an immigration decision taken after the Conclusive Grounds decision has been taken?

    There is no automatic right of appeal if after a decision is made under the NRM, no limited leave is granted by the Home Office.

    A person might be able to appeal to the First-tier tribunal (Immigration and Asylum Chamber) in some circumstances depending on the application they have made outside the NRM, for example:

    • if their asylum claim is refused
    • if a human rights claim is refused
    • they have been refused a residence document under the European Economic Area (EEA) Regulations

    In some cases a refusal to grant immigration leave might attract an administrative review.

    The above is intended as a summary, See Appeal against a visa or immigration decision on GOV.UK for further details.