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Major court win for trafficking victims as subsistence payment cut is reversed
Credit: Silvia Nicolaou via Twitter

Major court win for trafficking victims as subsistence payment cut is reversed

In a robust judgment yesterday, the High Court found the decision of the Home Office to cut weekly benefits to asylum-seeking victims of trafficking was unlawful.

The rate was previously set at £65 per week and was dramatically cut by 42% from 1 March 2018, to £37.75 per week (the same as the asylum support rate).

Lack of trafficking guidance “completely unacceptable”

As Mr Justice Mostyn highlighted, modern slavery was deemed by Parliament to be “a repulsive, strikingly malignant practice, as damaging in its impact on its victims as was its historical predecessor”. As a result, the Modern Slavery Act 2015 was enacted. Section 49(1) of the 2015 Act compelled the Home Secretary to issue guidance about:

  1. The indicators that a person was a victim of slavery or human trafficking;
  2. How assistance and support could be provided to those people
  3. Determining whether there were reasonable grounds to believe that a person may be a victim of slavery or human trafficking.

What became immediately apparent was that despite three years having gone by since the 2015 Act came into force, the Secretary of State had not bothered to issue guidance pursuant to section 49 of the Act. Quite rightly, the High Court was appalled:

One thing is certain. It is the Home Secretary’s absolute duty immediately to issue the guidance that Parliament has required of him. Any further delay would be completely unacceptable.

The claimants in this case had received a decision from the Home Office that there were reasonable grounds to believe that they were victims of trafficking (a “positive reasonable grounds decision”, in the jargon). They were waiting for the Home Office to make a final decision (or “conclusive grounds decision”). In the meantime, they were entitled to weekly subsistence payments.

The benefits cut

The benefits paid to potential victims of trafficking while awaiting a decision were provided under an agreement between the Secretary of State and the Salvation Army. Schedule 6 of that contract made reference to the fact that the Secretary of State was not permitted to vary the agreement save “in the case of an emergency”. The table of payments which listed the subsistence payments paid in cash, read as follows:

Service User Type Value of Subsistence Payment
Service user in catered accommodation provided by the contractor £35
Service user in self-catering accommodation provided by the contractor £65
Service user accommodated by the authority and in receipt of subsistence payments through that service £65 minus the amount of subsistence received by (sic) the authority
Service user not accommodated by the contractor or the authority (e.g. living with friends or family) £35

The second and third classes were the most important:

What is absolutely clear is that for the second and third classes… the cash payment is £65, albeit in the third class the victim must give credit for any money received by him or her under section 95 of the Asylum and Immigration Act 1999 and the Asylum Support Regulations 2000 (SI 2000/704). Under those Regulations the weekly subsistence payment for asylum-seekers is £37.75. Thus, under the plain terms of the contract a victim in the third-class gets a top-up of £27.25 to achieve the headline figure of £65.

But, astonishingly, the Secretary of State claimed it was never intended that victims of trafficking who were seeking asylum should have received more than £37.75. Quite rightly, that argument was given short shrift by the court given that:

  1. There was no evidence, let alone any adequate evidence, that at the time the contract was made by the Home Office and the Salvation Army that anyone believed there was a mistake
  2. The Home Office paid the Salvation Army on a monthly basis in which the Salvation Army set out every single payment made to victims and would obviously have realised early on if there were any issues
  3. If the Secretary of State was right, it would mean that trafficking victims seeking asylum would receive £37.75 whereas victims who were not claiming asylum would receive £65. That would be an absurd reading of the contract that “no reasonable interpreter could conclude”.

But nevertheless, on 26 October 2017 the Minister for Crime, Safeguarding and Vulnerability announced in Parliament a series of reforms to the National Referral Mechanism. The day before, a briefing note had been published which said:

Potential victims in NRM are in a comparable situation to those awaiting their immigration decision, but they receive a subsistence rate of £65. There is no clear justification to explain why we give potential victims of modern slavery substantially more subsistence than people in asylum accommodation. This means we have a significant legal and presentational risk.

From 1 March 2018, Salvation Army was explicitly told to reduce cash payments. Remarkably, the Secretary of State argued that the decision was taken independently by the Salvation Army and that the Home Office did not direct or instruct them. The High Court didn’t buy it:

In my judgment, the decision was taken on a false basis and cannot stand. There was no common mistake which needed to be rectified. Rather, this was a partial implementation of the policy announced on 26 October 2017, although it was not done in a procedurally correct or fair way, and was dressed up as a rectification of a mistake. In public law terms the decision can be characterised as irrational and perverse, as well as being outside the tightly confined variation power within the contract.

The cut was accordingly unlawful, and the contract change quashed.

A good day in court

The case citation is K & Anor, R (on the application of) v Secretary of State for the Home Department [2018] EWHC 2951 (Admin). The claimants were represented by Nathalie Lieven QC of Blackstone Chambers and Shu Shin Luh of Garden Court Chambers, instructed by Wilson Solicitors. The second claimant was represented by Chris Buttler and Ayesha Christie of Matrix Chambers, instructed by Simpson Millar.

Redress for trafficking victims

A court order (appended to the judgment and embedded below) allows those affected to reclaim the monies owed to them. We understand that the Secretary of State has refused to give a timescale of when all victims will be informed.

If you are representing a potential victim of trafficking, ask them whether they have been affected. If so, pursuing the Home Office is the way forward. The amount owed from the date of the cut until 7 November 2018 would be £981 for a claimant receiving section 95 support. Apparently, this whole mess is going to cost the Home Office upwards of £1 million.

It never ceases to amaze me how low the Home Office is willing to stoop to save a few bucks or to rip off migrants. Or both.

 

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