MD v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Kerr |
| Judgment Date | 24 May 2021 |
| Neutral Citation | [2021] EWHC 1370 (Admin) |
| Date | 24 May 2021 |
| Docket Number | Case No: CO/2577/2020 and CO/3659/2020 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 1370 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Kerr
Case No: CO/2577/2020 and CO/3659/2020
The Queen on the application of
Mr Chris Buttler and Ms Ayesha Christie (instructed by (1) Simpson Millar LLP (2) Deighton Pierce Glynn Limited) for the Claimants
Mr Robin Tam QC and Mr Jack Anderson (instructed by Government Legal Department) for the Defendant
Hearing dates: 2nd and 3rd March 2021
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
The claimants are single mothers from Albania living in this country. Both have suffered much. They have dependent children. They have been conclusively found to be victims of sex trafficking. They are now receiving support in this country under the support regime for victims of trafficking. Both have also sought asylum. They have now been recognised as refugees. MD's asylum application was granted on 21 February 2021; EH's, on 29 March 2021.
It is common ground that because they are asylum seekers, in receipt of asylum support, they do not receive financial support under the provisions of the Modern Slavery Victim Care Contract in respect of any dependent children; whereas if they were not in receipt of asylum support but in receipt of financial support from other sources (universal credit, “legacy” benefits or paid work) they would receive financial support in respect of dependent children.
The claimants submit that this difference of treatment between asylum seeker victims of trafficking with dependent children and non-asylum seeker victims of trafficking with dependent children is contrary to article 14 of the European Convention on Human Rights ( ECHR), read with article 4 and article 1, first protocol ( A1P1) and cannot be justified; and that it is irrational.
The claimants also submit that the same difference of treatment violates article 14 because it impacts adversely on lone parents, who are nearly all women. It was argued at length and in detail that the adverse impact arose because lone parent asylum seeker victims of trafficking are less able than co-parents to obtain and pay for child care that is essential to enable victims to attend appointments, notably for legal, medical and counselling purposes.
In the course of oral argument at the hearing the claimants adopted the court's suggestion that the adverse impact can be more simply identified in that members of the disadvantaged group — lone parent asylum seeker victims of trafficking, who are mainly female – receive less money each week than others, not seeking asylum, who are not members of that disadvantaged group.
The claimants, accordingly, seek a declaration that the defendant ( Secretary of State) is in breach of article 14 of the ECHR and damages affording just satisfaction for that breach, to be assessed if not agreed. The Secretary of State unsuccessfully sought an adjournment of the hearing to enable her to look into the matter further, but now asks the court to dismiss the claims.
The Secretary of State does not dispute that this difference of treatment exists. She submitted that it is the product of an error and of historical accident. Money paid to victims of trafficking in respect of their dependent children, where the victims are not in receipt of asylum support but of mainstream benefits (universal credit or legacy benefits), should be deducted from their mainstream benefits, but through inadvertence is not being deducted.
That is not, says the Secretary of State, discrimination against persons such as the claimants; it is an unmerited windfall for a class of persons in an arbitrarily advantaged group who ought not to be receiving the windfall. The Secretary of State accepts that the regime needs changing and asserts that a change is planned which will consider levels of support on an “individualised” basis.
Meanwhile, the Secretary of State asks the court to grant no relief on this application. In her skeleton argument she advanced the double negative proposition that as between asylum seeking victims of trafficking and non-asylum seeking victims of trafficking, she “does not admit that there is no justification for the difference of treatment involved”. The difference of treatment is an “anomaly” which the Secretary of State intends to address.
As for the adverse impact on lone parent asylum seeking victims of trafficking, most of whom are women, the Secretary of State submits that she “was justified in providing trafficking support in the form of flat rate payments in accordance with the terms of her policy”. The measure is not manifestly without reasonable foundation and the court should not intervene, for the decision is as to “how resources should be allocated”.
The Facts
In 2013, universal credit ( UC) was introduced in this country. It was, as is well known, the most substantial reform of the social security support system in at least a generation. Alongside UC, those eligible continued to receive certain “legacy” benefits such as job seeker's allowance, employment support allowance, child tax credit and child benefit. UC and legacy benefits are often (and in this judgment) referred to as “mainstream benefits”.
The Secretary of State is responsible for administering asylum support to those seeking asylum in this country. Asylum support is regulated by statute and is broadly concerned with meeting essential living needs at a level sufficient to avert destitution. Asylum seekers are excluded from receipt of mainstream benefits. Asylum support includes additional payments for essential needs of dependent children, including where the asylum seeker is a victim of trafficking.
The Secretary of State is also responsible for administering support to victims of trafficking. This is provided through a policy document called the “ MSA Guidance”. MSA stands for Modern Slavery Act 2015. The MSA Guidance is made under section 49(1) of that Act. The MSA Guidance implements the obligations of the United Kingdom under the Council of Europe Convention on Action Against Trafficking in Human Beings ( ECAT).
Those obligations include providing financial support to those identified as victims or potential victims of trafficking. The MSA Guidance states that the purpose of such support is twofold: to meet the person's essential living needs; and to meet what the claimants call her “trafficking needs”, i.e. in the language of the MSA Guidance, to assist with her social, psychological and physical recovery and reintegration into society after being freed.
A victim of trafficking who is also an asylum seeker, accordingly, receives an additional amount for “trafficking needs”, over and above the amount of asylum support for essential living needs. That additional amount (currently, £25.40 per week) is what is paid for the purpose of assisting with social, psychological and physical recovery. The claimants characterise that payment as for “adult trafficking needs”. The Secretary of State does not accept that description.
Asylum seekers with dependent children who are victims of trafficking receive no further payment to meet what the claimants call the “[a]dult's additional trafficking needs on account of having a child”. In evidence and argument, the claimants explain that this refers to the need for the victim to purchase child care for the purpose of attending appointments for legal, medical or counselling purposes and the like, which her children should not and usually may not attend.
The Secretary of State says this is a misleading characterisation because the UK's obligations under the ECAT do not extend to, and the MSA Guidance does not make provision for, financial support to purchase child care. For the children of victims the MSA provides only, says the Secretary of State, for their essential living needs to be met.
However, the Secretary of State does accept that if the trafficking victim with dependent children is not also an asylum seeker but instead in receipt of mainstream benefits, unlike her asylum seeker counterpart she gets an additional amount (currently, £39.60 per week) per child (plus an additional £5 per week if the child is aged under one year, or an additional £3 per week if the child is aged from one to three years).
That is the effect of the provisions in Annex F to the MSA Guidance, which then contain an exception at paragraph 15.38 in the case of asylum seekers (now paragraph 15.39 in the January 2021 version, but not materially different):
“Potential victims or victims of modern slavery receiving NRM [National Referral Mechanism] support who are receiving asylum support will not receive any financial support through the VCC [Victim Care Contract] in respect of any dependents, or pregnancy payments as these will be met through the asylum support system.”
That is the difference of treatment under challenge. The claimants call it “the exclusionary rule”, emphasising that the asylum seeker trafficking victim is excluded from an entitlement enjoyed by her non-asylum seeker counterpart in receipt of mainstream benefits. The Secretary of State prefers the term “windfall” to describe the anomalous entitlement of the latter to payments that should in principle be deducted from the mainstream benefits she is receiving.
The Secretary of State's policy adviser, Ms...
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