Antanas Galdikas (Claimant (1) Rimantas Tamosaitis (Claimant (2) Edgaras Subatkis (Claimant (3) Edviana Subatkis) (Claimant (4) v Secretary of State for the Home Department (Defendant (1) Secretary of State for Work and Pensions (Defendant (2) National Crime Agency (Interested Party (1) Liverpool City Council (Interested Party (2) Manchester City Council (Interested Party (3)
| Jurisdiction | England & Wales |
| Judge | Sir Stephen Silber |
| Judgment Date | 26 April 2016 |
| Neutral Citation | [2016] EWHC 942 (Admin) |
| Docket Number | Case Nos: CO/3983/2015 & CO/5652/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 26 April 2016 |
[2016] EWHC 942 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir Stephen Silber
Sitting As A High Court Judge
Case Nos: CO/3983/2015 & CO/5652/2015
The Queen (on the application of
Martin Westgate QC and Catherine Meredith (instructed by Leigh Day) for the Claimants
David Blundell (instructed by Government Legal Department) for the Defendants
The Interested Parties took no part in the proceedings and were not represented at the hearing
Hearing dates: 9 th and 10 th March 2016
Further Written Submissions 14 th and 31 st March 2016 and on 11 th and 18 th April 2016
Introduction
The United Kingdom Government considers that human trafficking is a form of modern slavery, because the essence of it is that its victims are coerced or deceived into situations where they are exploited. The United Kingdom has opted into the EU's Trafficking Directive 2011/36 ("the Directive"), which requires the United Kingdom authorities to set up a regime for providing support for those who have been recognised as victims of trafficking. The Home Office and the Ministry of Justice have jointly funded a national support service for adult victims of trafficking in England and Wales under a victim care contract, which provides vulnerable victims of trafficking with care and support. This case is not concerned with the issue of whether particular individuals should be recognised as victims of trafficking, but instead it raises questions concerning the support that such victims should continue to receive after a conclusive grounds decision has been made that they are actually victims of trafficking.
The present application is principally concerned with the issue of whether there has been a failure by the Secretary of State for the Home Department ("SSHD") 1 and by the Secretary of State for Work and Pensions ("SSWP") 2 to put in place a comprehensive support regime for recognised victims of human trafficking in accordance with the United Kingdom's obligations, in particular after the conclusion of the 45-day recovery and reflection period in which those victims are entitled to assistance and support. The relief sought is principally concerned with the nature and legality of the regime in force and more particularly if the regime is compatible with EU law and public international law. The Claimants' case is brought with the assistance of evidence from Ms Phillipa Roberts, who is the Legal Director of Hope for Justice ("HFJ"), which is described as an "anti-trafficking charity" and which assists victims of trafficking. The Defendants' case is supported by evidence from Ms Helen Sayeed of the Asylum, Strategy and Trafficking Team at the Home Office.
The Support Regime for Victims of Trafficking
To understand the submissions, it is necessary to explain the support regime in place in the United Kingdom for the victims of trafficking and which is explained in the SSHD's Victims of Modern Slavery: Competent Authority Guidance (July 2015) ("the Guidance"). As this claim relates to those who are conclusively found to be the victims of trafficking, I will only describe the four-stage procedure applicable to those victims and I will not explain the procedure in relation to those who are not found to be the victims of trafficking.
The first step under the support regime is the identification of potential victims of trafficking so that they can then be referred to the National Referral Mechanism ("NRM"), which is a victim identification and support process. The second stage of the NRM is to make what is called "a reasonable grounds decision" which is a
The support provided is given by a national support service for adult victims of trafficking under a victim care contract, which is jointly funded by the Home Office and the Ministry of Justice. The victim care contract is delivered in England and Wales by the Salvation Army, which supports victims whilst they remain in the NRM. Everybody who receives a positive conclusive grounds decision at the end of the recovery and reflection period is then entitled under the contract with the Salvation Army to a further support period of 14 days. The Defendants' case is that the Home Office considers on a case-by-case basis whether to grant extensions of support to those periods for those with positive conclusive grounds decisions, like the Claimants in this action.
The case for the Claimants is that the present system lacks the capacity to react appropriately to the needs of victims with the result that gaps in the provision of necessary support are inherently likely and they cannot be explained as mere aberrant decisions in individual cases. In particular it is contended that there is no requirement in the Guidance or in the contract with the Salvation Army requiring routine assessments of need in individual cases after the 45-day recovery and reflection period and no criteria as to when support is to be provided pending a decision on an application for Discretionary Leave to Remain ("DLR") which is the way in which the United Kingdom gives support and assistance to trafficking victims in accordance with its international obligations. The case for the Defendants is that there is discretionary power to extend the 45-day period and to grant discretionary extensions of this period to support them. The Claimants' case is that this is inadequate, as the discretionary power to extend the 45-day period is subject to highly restrictive conditions and the discretionary extensions are based on an unstructured discretion exercisable only on a request made by the Salvation Army. It is said that support often expires before a solution is reached.
A person who is accepted as a victim of trafficking may be granted DLR, but he or she is not automatically entitled to that leave as a direct result of conclusively being accepted as a victim of trafficking. To obtain DLR, a victim of trafficking must meet certain specified criteria, such as that in their cases there are particularly compelling circumstances which justify a grant of DLR. Nationals of the European Economic Area ("EEA") who are accepted as being victims of trafficking retain their ability to
exercise free movement rights in accordance with EU Regulations. There might be some circumstances in which an EEA national who was a trafficking victim is unable to exercise their free movement rights, and in those circumstances, the Home Office would consider any request for DLR in line with its published policy. A person granted DLR is entitled to all mainstream benefits. There is evidence that the 14-day extra support period is insufficient time for victims to apply for DLR and to receive a response to their applications as such applications often take a very much longer period to process.The Claimants
The background of each Claimant is not in dispute. They are all nationals of the EEA and they have all been conclusively recognised as victims of trafficking. At the time when they were so recognised as trafficking victims, the Claimants qualified for and were granted income-related Jobseeker's Allowance (" JSA"), but their entitlement to this benefit ceased in 2014 following changes to the Immigration (EEA) Regulations 2006 ( SI/2006/1003) ("the EEA regulations") came into effect. This set a time limit on the right of EEA nationals to reside in the United Kingdom as a job seeker unless they could show compelling evidence of a genuine prospect of work ("the GPOW test"). Since 2014, EEA nationals will be unable to obtain JSA until they have been in the country for 3 months.
The Claimants, Antanas Galdikas ("AG") and Rimantas Tamosatis ("RT") have applied for DLR in the United Kingdom and if their applications were to be granted, they would become entitled to claim their benefits. No decision has been made on RT's application, which was made on 3 July 2015. On 15 December 2015, the Home Office wrote to RT's representatives to request further information relating to RT's circumstances and his case...
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