The Weekly Round-up: Human trafficking, climate protest and algorithmic discrimination

19 October 2021 by Hugo Murphy

In the news:

In a landmark decision handed down on Tuesday, the High Court ruled that discretionary leave to remain should be granted to recognised modern slavery victims seeking asylum based on the fear of being re-trafficked upon return to their home countries. Linden J delivered judgment in KTT, R (on the application of) v Secretary of State for the Home Department [2021] EWHC 2722 (Admin) (12 October 2021).

The judicial review challenge was brought by a 33-year-old Vietnamese national who had been subjected to forced labour, including prostitution and cannabis production, in a number of countries, including Russia, Ukraine, France and the UK. Having been recognised by the Home Office as a victim of modern slavery, she was refused discretionary leave to remain while her asylum claim was being processed, meaning that she was subject to the so-called hostile environment underpinned by the Immigration Act 2014. 

Linden J held that this position violated Article 14 of the Council of Europe Convention on Action Against Trafficking in Human Beings 2005, which provides that states must

issue a renewable residence permit to [modern slavery] victims…[if] the competent authority considers that their stay is necessary owing to their personal situation.

On a common-sense interpretation of the provision’s language and purpose, it was clear that human trafficking victims must be allowed to stay and access attendant benefits. The Home Office policy of denying people in the Claimant’s position recourse to public funds was incompatible with this reading. 

As a result of the decision, thousands of recognised human trafficking victims seeking asylum in the UK are to be granted discretionary leave to remain en masse. If the Home Office decides to appeal it must lodge an application seeking permission to do so by 19 October.

In other news:

• An indirect discrimination claim has been filed by the Independent Workers’ Union of Great Britain (IWGB) against Uber for the ‘racist’ effects of its facial recognition software. The software in question is a ‘photo comparison’ algorithm which the App uses to verify that drivers match their profile pictures. It was recently revealed that darker-skinned workers are five times more likely to be blocked from the platform by the technology.
• Police Scotland have announced that protestors who block major roads during the upcoming COP26 conference in Glasgow will be moved and may face arrest. While suggesting that the force would aim to deal with protestors proportionately, Deputy Chief Constable Will Kerr confirmed that even peaceful assemblies will be subject to robust police action if their presence on main arterial roads is deemed unlawful and unsafe.
• A terror offender accused of ‘grooming’ the Manchester Arena bomber has told the public inquiry into the attack that he will refuse to give evidence if ordered to attend next week. Lawyers acting for Abdalraouf Abdallah have indicated that he wishes to assert ‘privilege against self-incrimination’. He has so far refused to answer written questions from prison. Chair Sir John Saunders will now have to decide whether to compel him to attend an inquiry hearing on Wednesday.

In the courts:

• MY (Pakistan) v Secretary of State for the Home Department [2021] EWCA Civ 1500 (15 October 2021): The Court of Appeal upheld an Upper Tribunal decision that the right to appeal a rejected indefinite leave to remain application on the basis that it contained a refused human rights claim requires that the applicant has used the specific human rights claim form. Under section 82(1)(b) of the Immigration Act 2014, appeals may be made to the First-tier Tribunal against leave to remain refusals if ‘the Secretary of State has decided to refuse a human rights claim’. The Appellant made an application as a victim of domestic violence, and while documents he submitted indicated that his removal from the UK may be incompatible with his Convention rights, he did not articulate this argument on the specific human rights claim form issued by the Home Office. The Secretary of State accordingly declared that no human rights claim had been considered, depriving the applicant of the right to appeal. The First-tier Tribunal refused jurisdiction to entertain any appeal in respect of the decision on this basis, and the Upper Tribunal upheld that decision. The Court of Appeal agreed, ruling that on the basis and format of the documentation submitted by the Appellant to the Home Office, the Secretary of State was not required to and did not make any decision regarding a human rights claim.

On the UKHRB:

• In the latest Law Pod UK episode, Rosalind English talks to Professor Ryan Abbott about the recent ruling in the Court of Appeal on whether an invention made by Artificial Intelligence without a traditional human inventor is entitled to a patent.
• Nicola Logan covers the High Court’s recent decision in Dove v HM Assistant Coroner to Teesside and Hartlepool & Anor [2021] EWHC 2511, in which the State’s obligations to those in receipt of welfare benefits under article 2 ECHR were examined.
• And 1COR’s Rosalind English explores a recent lawsuit filed against a pharmaceutical company by the estate of a patient whose cells it has been using for vaccine research and development.