K v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mostyn |
| Judgment Date | 08 November 2018 |
| Neutral Citation | [2018] EWHC 2951 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2143/2018 & CO/2294/2018 |
| Date | 08 November 2018 |
The Queen on the application of
and
[2018] EWHC 2951 (Admin)
Mr Justice Mostyn
Case No: CO/2143/2018 & CO/2294/2018
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Nathalie Lieven QC and Shu Shin Luh (instructed by Wilson Solicitors LLP) for the 1st Claimant
Chris Buttler and Ayesha Christie (instructed by Simpson Millar LLP) for the 2nd Claimant
Clive Sheldon QC and Joe Barrett (instructed by Government Legal Dept) for the Defendant
The Interested Parties were not represented
Hearing dates: 30 & 31 October 2018
This case is about modern slavery. Specifically, it is about the money paid by the state to certain potential victims of human trafficking 1. On 1 March 2018 the weekly cash amount payable to such people was cut by 42% from £65 to £37.75. The claimants say that this cut is unlawful. They seek that the decision that brought about the cut be quashed and that they be recompensed at the weekly rate of £27.25 from 1 March 2018 until repayment.
Modern slavery is a repulsive, strikingly malignant practice, as damaging in its impact on its victims as was its historical predecessor. Its dire effects have been recognised by Parliament which has passed the Modern Slavery Act 2015. The explanatory notes which accompany the Act say this (under the heading “Background”):
“Modern slavery is a brutal form of organised crime in which people are treated as commodities and exploited for criminal gain. The true extent of modern slavery in the United Kingdom, and indeed globally, is unknown. Modern slavery, in particular human trafficking, is an international problem and victims may have entered the United Kingdom legally, on forged documentation or clandestinely, or they may be British citizens living in the United Kingdom. Modern slavery takes a number of forms, including sexual exploitation, forced labour and domestic servitude, and victims come from all walks of life. Victims are often unwilling to come forward to law enforcement or public protection agencies, not seeing themselves as victims, or fearing further reprisals from their abusers. In particular, there may be particular social and cultural barriers to men identifying themselves as victims. Victims may also not always be recognised as victims of modern slavery by those who come into contact with them.”
The explanatory notes go on to explain that the purpose of the Act was to give effect to a number of international instruments, one of which was a Directive promulgated by the European Union into which the UK had opted, and which was therefore of direct effect here. They state:
“There are a number of international instruments on human trafficking. The main international instrument is the Protocol to the United Nations Convention against Transnational Organized Crime, named the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against
Transnational Organized Crime (the “Palermo Protocol”). The definition of trafficking contained in that instrument was adopted in the Council of Europe Convention on Action against Trafficking in Human Beings (the “Convention on Action against Trafficking”). That international instrument was ratified by the United Kingdom on 17 December 2008. After this time, the European Commission tabled a proposal for a Directive on trafficking in human beings. A final text was agreed in March 2011 and was adopted on 5 April 2011: Directive 2011/36/EU of the European Parliament and of the Council on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decisions 2002/629/JHA (the “Directive on preventing and combating trafficking”). That Directive adopts and expands upon the obligations and definitions contained in the Palermo Protocol and the Convention on Action against Trafficking. The United Kingdom has opted into this Directive. In order to ensure full compliance with the obligations contained in that Directive in England and Wales, Parliament made changes to the Sexual Offences Act 2003 and the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 through sections 109 and 110 of the Protection of Freedoms Act 2012.”
As will be seen, those instruments impose obligations on subscribing states to provide support and assistance to victims of trafficking. Thus, section 49(1) of the 2015 Act provides:
“The Secretary of State must issue guidance to such public authorities and other persons as the Secretary of State considers appropriate about—
(a) the sorts of things which indicate that a person may be a victim of slavery or human trafficking;
(b) arrangements for providing assistance and support to persons who there are reasonable grounds to believe may be victims of slavery or human trafficking;
(c) arrangements for determining whether there are reasonable grounds to believe that a person may be a victim of slavery or human trafficking.
(emphasis added)
The explanatory notes for this section say:
“Section 49 requires guidance to be issued to public authorities and other persons as considered appropriate by the Secretary of State in relation to identifying and supporting victims. The guidance will cover the sorts of things which indicate that a person may be a victim of slavery or human trafficking; arrangements for the provision of assistance and support to persons who there are reasonable grounds to believe may be victims of slavery or human trafficking and any arrangements, including those made under section 50, for determining whether a person is to be treated as a victim of slavery or human trafficking. The purpose of the guidance is to further support effective identification of potential victims of slavery and human trafficking and to set out the assistance and support on offer to all slavery and trafficking victims, taking into account international requirements set out in the Convention on Action against Trafficking and the Directive on preventing and combating trafficking.”
When reading into this case I was struck that there was no reference to this guidance in the copious paperwork. Had it existed I reasoned that there would have been no need for this case where the arrangements for the support of victims of trafficking are dealt with under non-statutory administrative measures issued by the executive. Rather, the arrangements would have been set out unambiguously in the statutory guidance. When I raised this with Mr Sheldon QC I was told that the reason that no guidance had been issued pursuant to section 49 (or, for that matter, no regulations made under section 50) was that these sections were not in force. However overnight I decided to check, and I discovered that by virtue of the Modern Slavery Act 2015 (Commencement No.2) Regulations 2015 ( SI 2015/1690), section 49 had been brought into force on 15 October 2015, over three years ago. I asked why the Home Secretary had failed to comply with his statutory duty under section 49(1) to issue guidance over the last three years, but Mr Sheldon QC was not able to give me an answer.
Given that the purpose of the guidance would be to put beyond any doubt that the international instruments referred to in the explanatory notes were applicable and binding here, it follows that it does not easily lie in the mouth of the Home Secretary now to suggest through Mr Sheldon QC that the Convention on Action against Trafficking is not. But this unhappy point aside, I agree with Miss Lieven QC that the Convention is domesticated as the non-statutory administrative guidance referred to below is said to be based on that Convention. It is also said to reflect the relevant provisions of the Modern Slavery Act 2015 (which, as explained above, reflects the international instruments). An alleged failure to give effect to the Convention is justiciable: R (on the application of PK (Ghana)) v The Secretary of State for the Home Department [2018] EWCA Civ 98 at [34]. Mr Sheldon QC's skeleton at paras 20 – 26 is rightly premised on the Directive being fully applicable here.
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.
What the Government has done is to establish administratively a National Referral Mechanism which provides the machinery for determining whether someone is a potential or actual victim of trafficking. The operation of the National Referral Mechanism is regulated by internal guidance issued for Home Office staff on 21 March 2016. Under this guidance the claimants, as potential victims of trafficking, are entitled to, at a minimum, subsistence, counselling, medical care and legal advice and assistance. These benefits or services are provided by means of a contract entered into between the Home Secretary and the Salvation Army. The Salvation Army is the formal principal administrator of these benefits and services but is able to delegate these to subcontractors. The contract in my papers was executed, and took effect, on 1 April 2015 and is stated to expire automatically on 31 March 2018, unless extended by the Home Office, by notice given in writing. I assume that this has happened, although I have not been shown any extension notice.
Clause 37 of the contract states that it shall not be varied unless such variation is made in writing by means of a Change of Control Notice as set out in Schedule 6. Schedule 6 allows the Home Office to vary the contract unilaterally only in the case of an emergency; otherwise variation must be initiated by the Salvation...
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