MD v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Underhill,Asplin LJ,Simler LJ |
| Judgment Date | 16 March 2022 |
| Neutral Citation | [2022] EWCA Civ 336 |
| Docket Number | Case No: C4/2021/1133 |
| Court | Court of Appeal (Civil Division) |
[2022] EWCA Civ 336
Lord Justice Underhill
(Vice-President of the Court of Appeal (Civil Division))
Lady Justice Asplin
and
Lady Justice Simler
Case No: C4/2021/1133
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice Kerr
Royal Courts of Justice
Strand, London, WC2A 2LL
Robin Tam QC and Jack Anderson (instructed by the Treasury Solicitor) for the Appellant
Chris Buttler QC and Ayesha Christie (instructed by Simpson Millar and Deighton Peirce Glynn) for the Respondents
Hearing dates: 2 & 3 November 2021
Approved Judgment
INTRODUCTION
This appeal arises out of two claims against the Secretary of State for the Home Department which were heard together in the Administrative Court. The Claimants in both cases, who are the Respondents before us, are Albanian single mothers who were trafficked to this country for sexual exploitation and have been formally recognised as victims of trafficking. The process of recognition involves two stages – first when it is decided that there are reasonable grounds to believe that the person in question is a victim of trafficking (a so-called “potential” victim) and secondly when a “conclusive grounds” decision is made (what I will call a “confirmed” victim). As victims of trafficking they are entitled to anonymity: see sections 1 and 2 (1) (db) of the Sexual Offences (Amendment) Act 1992.
From the date of the reasonable grounds decisions in their cases both Claimants were entitled to financial support funded by the Home Office under the arrangements of which I give details below (“VoT support”). Both also sought asylum under the Refugee Convention (which has since been granted): in that capacity they were entitled to support under the statutory regime applying to asylum-seekers (“asylum-seeker support”) of which, again, I give details below.
The claims in these proceedings arise out of the interaction of those two support regimes with each other and also with the provisions relating to entitlement to so-called “mainstream” social security benefits, i.e. either universal credit or one of the “legacy benefits” which it has now largely replaced. They cannot sensibly be summarised until I have explained the applicable provisions. It is enough to note at this stage that the Claimants say that the way in which the regimes impacted on them constituted discrimination in breach of their rights under article 14 of the European Convention on Human Rights (“the ECHR”) and was accordingly unlawful under section 6 (1) of the Human Rights Act 1998.
By a decision handed down on 24 May 2021 Kerr J upheld the claims of unlawful discrimination and awarded declaratory relief. He also held that the Claimants were entitled to damages under section 8 of the 1998 Act and directed that the quantum of damages be determined at a further hearing: that hearing has been deferred pending the outcome of this appeal. I give further details of his decision below.
The Secretary of State has not sought to appeal against the decision that there was a breach of the Claimants' Convention rights; but she appeals, with permission granted by Holroyde LJ, against one of the bases on which discrimination was found and against the decision that they are entitled to damages.
The Claimants have been represented by Mr Chris Buttler QC and Ms Ayesha Christie, and the Secretary of State by Mr Robin Tam QC and Mr Jack Anderson. The same counsel appeared before Kerr J. Although for convenience I will refer to the parties' skeleton arguments as though they were the work of leading counsel alone, I am sure that that is far from being the case. The case was very well argued on both sides.
The questions raised by this appeal are essentially issues of technical legal analysis and it is on those that this judgment will focus. But it should not be thought that the Court is unaware of what the Claimants have suffered as a result of their experiences, which include violent rape and forced prostitution, or of their difficulties in adjusting to a new country, particularly as single mothers. Both suffer from post-traumatic stress disorder (“PTSD”) and associated mental health problems.
THE FINANCIAL SUPPORT REGIMES
I start by summarising the relevant provisions of the regimes for trafficking and asylum-seeker support and the provisions governing their relationship with entitlement to mainstream benefits. The provisions in question were subject to some changes over the period covered by the two claims, which is from January 2018 to February 2021 (see para. 47 below). Although the VoT support regime is the main focus of the claims, it is best to start with the asylum-seeker regime, which came first.
ASYLUM-SEEKER SUPPORT
Part VI of the Immigration and Asylum Act 1999 specifies the kinds of support available to “asylum-seekers”, defined in section 94 as persons over 18 who have made a claim for asylum which has been recorded by the Secretary of State but which has not yet been determined. “Claim for asylum” is defined to cover claims relying on article 3 of the ECHR as well as claims relying on the Refugee Convention.
Section 95 (1) empowers the Secretary of State to provide, or arrange for the provision of, support for:
“(a) asylum-seekers, or
(b) dependants of asylum-seekers,
who appear to the Secretary of State to be destitute or to be likely to become destitute …”.
Subsection (3) provides:
“For the purposes of this section, a person is destitute if —
(a) he does not have adequate accommodation or any means of obtaining it (whether or not his other essential living needs are met); or
(b) he has adequate accommodation or the means of obtaining it, but cannot meet his other essential living needs.”
The concept of “essential living needs” which underlies section 95 (3) is important in the arguments before us.
Section 96 (1) provides for ways in which support under section 95 may be provided. These include (at (a)) the provision of accommodation and (at (b)) the provision of essential living needs. By section 94 (2) references to provision of support in Part VI include support provided under arrangements made by the Secretary of State under section 95.
Section 98 empowers the Secretary of State to afford temporary support to asylum-seekers and their dependants who may be destitute pending a decision as to whether they are in fact entitled to support under section 95; and section 4 provides for support for failed asylum-seekers. No point arises in this appeal about either section, but I mention them because they are referred to in other provisions to which I shall have to refer.
Section 95 (12) gives effect to Schedule 8 of the Act, which empowers the Secretary of State to make regulations supplementing the section. Pursuant to that power, the Secretary of State has made the Asylum Support Regulations 2000. The relevant provisions for our purposes are regulations 10 and 10A.
Regulation 10 is concerned with essential living needs and reads (so far as relevant):
“(1) This regulation applies where the Secretary of State has decided that asylum support should be provided in respect of the essential living needs of a person.
(2) As a general rule, asylum support in respect of the essential living needs of that person may be expected to be provided weekly in the form of a cash payment of [a specified amount].
(3)-(5)…”
I will refer to a payment under regulation 10 (2) as an “essential living needs payment”.
Regulation 10A (1) provides for additional weekly amounts to be paid to pregnant women or to parents of children aged under 3.
It is convenient to refer to payments under regulations 10 (2) and 10A (1) as entitlements, though of course they are payable only if the Secretary of State believes that the recipients are destitute or likely to become destitute – and even then it is only a “general rule” that support will be provided in the form of a weekly cash payment.
The amount of the essential living needs payment specified in regulation 10 (2) has varied over the period with which we are concerned. The relevant figures are:
The additional amounts specified in regulation 10A (1) have remained the same throughout at £3 for a pregnant woman, £5 for a child up to the age of 1, and £3 for a child up to the age of 3.
| Prior to 6.2.18 | £36.95 |
| 6.2.18–14.6.20 | £37.75 |
| 15.6.20–21.2.21 | £39.60 |
| 22.2.21–20.2.22 | £39.63 |
The persons entitled to essential living needs payments under regulation 10 (2) include dependants of asylum-seekers. Thus an asylum-seeker with a dependent child will receive (at current rates) £39.63 for themselves and the same amount for the child (together with any entitlement under regulation 10A (1)). I will refer to sums paid to asylum-seekers in respect of their dependent children as “asylum-seeker dependent child support”.
VoT SUPPORT
Background
Article 12.1 of the European Convention on Action against Trafficking in Human Beings (“ECAT”), which the UK ratified on 17 December 2008 with effect from 1 April 2009, begins:
“Each Party shall adopt such legislative or other measures as may be necessary to assist victims [of trafficking] in their physical, psychological and social recovery. Such assistance shall include, at least:
“(a) standards of living capable of ensuring their subsistence, through such measures as: appropriate and secure accommodation, psychological and material assistance
(b)-(f) …”
(Heads (b)-(f) are concerned with various specific services which are not relevant for our purposes.) It will be seen that assistance with “physical, psychological and social recovery” is the central...
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