R (AM) v Secretary of State for the Home Department
Jurisdiction | England & Wales |
Judge | Mr Justice Lane |
Judgment Date | 01 December 2023 |
Neutral Citation | [2023] EWHC 3034 (Admin) |
Docket Number | Case No: CO/3793/2022; AC-2022-LON-02855 |
Court | King's Bench Division (Administrative Court) |
and
[2023] EWHC 3034 (Admin)
Mr Justice Lane
Case No: CO/3793/2022; AC-2022-LON-02855
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Shu Shin Luh and Ms Grace Capel (instructed by Leigh Day Solicitors) for the Claimant
Mr Jack Anderson (instructed by The Government Legal Department) for the First Defendant
Mr Hilton Harrop-Griffiths (instructed by LB Barnet) for the Second Defendant
Hearing dates: 4 and 5 July 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 1 December 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives (see eg https://www.bailii.org/ew/cases/EWCA/Civ/2022/1169.html).
In this judgment, the following abbreviations are used:-
AVOT | Adult Victim of Trafficking |
Barnet | London Borough of Barnet (the Second Defendant) |
CA 1989 | |
CA 2004 | Children Act 2004 |
Camden | London Borough of Camden |
CAG | Victims of Modern Slavery Competent Authority Guidance 2014–2019 (issued under section 49 of the MSA) |
CVOT | Child Victim of Trafficking |
ECAT | Council of Europe Convention on Acton Against Trafficking In Human Beings |
Convention for the Protecton of Human Rights and Fundamental Freedoms | |
Explanatory Report | The Explanatory Report to ECAT |
ICTG | Independent Child Trafficking Guardians (for which provision is made by section 48 of the MSA |
MSA | |
MSAG | Modern Slavery Act Guidance (made under section 49 of the MSA) |
MSVCC | Modern Slavery Victim Care Contract |
NRM | National Referral Mechanism (the process for identifying VOTs) |
PVOT | Potental Victim of Trafficking |
RNA | Recovery Needs Assessment |
Safeguarding Children | The Safeguarding Children who may have been trafficked practice guidance (2011) |
SSHD | Secretary of State for the Home Department (the First Defendant) |
UASC | Unaccompanied Asylum-Seeking Child |
Unaccompanied and Trafficked Children Guidance | The care of unaccompanied migrant children and child victims of trafficking guidance (2017) (made under section 7 of the local authority Services Act 1970) |
UUCR | Unique Unaccompanied Child Record |
VOT | Victim of Modern Slavery |
Working Together | Working Together to safeguard children (2006–2018) (issued under section 7 of the local authority Services Act 1970 and section 11(4) of the Children Act 2004) |
2010 Regulations | Care Planning, Placement and Case Review (England) Regulations 2010 (amended 2014) (made under the Children Act 1998) |
With permission granted by Lang J, the claimant seeks judicial review of what is described as the decision of the SSHD and/or Barnet to refuse to provide him with back-dated payments in respect of financial support alleged to have been due to the claimant between 27 April 2018 and 16 December 2019, as a CVOT and before he consented to remain in the NRM, after he reached the age of majority.
On 23 July 2022, the SSHD agreed to make back payments of trafficking support under the MSVCC from 17th December 2019 to 25 January 2021. In essence, the SSHD disputes the substance of the challenge on the basis that, between 27 April 2018 and 14 May 2019, the claimant was a child. Accordingly, he did not fall within the MSVCC. Rather, his needs as a CVOT fell to be met by the second defendant. So far as concerns a period of 14 May 2019 to 17 December 2019, although the claimant was by then an adult, he had not consented to the MSVCC despite the fact that the SSHD had proactively sought to elicit such consent.
The claimant also seeks to advance a broader challenge to what he says is the unlawful difference in the way in which the SSHD's responsibilities under the MSA are discharged in relation to, respectively, AVOTs and CVOTs. The SSHD contends the claimant does not have standing to bring this broader challenge.
In essence, Barnet argues that it was not at fault in failing to appreciate that the claimant was a CVOT until it received a letter dated 1 March 2019 (shortly before the claimant reached the age of 18). Even if it should have had such a reason, Barnet says there is nothing to show that its care for the claimant would have been (or should have been) any different than what he actually received. In particular, Barnet appreciated that the claimant was affected by trauma and would benefit from counselling, which it endeavoured to arrange for him.
I am grateful to counsel and those instructing them for the quality of the submissions advanced on 4 and 5 July 2023.
I shall deal with the issues of timeliness and standing in due course. It is, however, necessary to mention two procedural matters at this stage. I granted the claimant permission to rely upon a skeleton argument that exceeded 25 pages. Given that the claimant's challenge against the first and second defendants is in each case somewhat distinct, I considered that it was appropriate to do so.
Mr Harrop-Griffiths sought to adduce a supplemental bundle of evidence, concerning communications in late December 2018 and 2019. This was said to be necessary in order to provide the complete factual picture, in the light of witness evidence filed by the claimant in June 2023. The same applied to a witness statement of Ms Kate Jeffrey, Barnet's Head of Service in the Corporate Parenting Service.
Ms Luh raised objections to the applications. By consent, I admitted the materials de bene esse. Given the fact that the materials were adduced in response to recent evidence from the claimant and as I consider it did not put the claimant or his team at any significant procedural disadvantage, I have decided to accede to Mr Harrop-Griffiths's application and have therefore engaged substantively with this evidence.
BACKGROUND
The claimant was born in Eritrea on 14 May 2001. When he was aged about four, he moved with his family to Ethiopia. He remained there until he was 15. The claimant says his uncle in Ethiopia was exploiting him through forced labour and had him arrested and imprisoned when he tried to complain about that. It seems the claimant at some point formed a decision to come to the United Kingdom. Whilst waiting for an opportunity to embark for Europe, the claimant was subjected to forced labour by a gang in Libya.
Upon arriving in the United Kingdom on 17 April 2018, when he was 16 years old, the claimant claimed asylum. He was initially accommodated by the London Borough of Camden, pending his transfer to another local authority via the pan-London rota. That rota is a regional sub-set of the national transfer scheme, which seeks to distribute responsibility for the care of unaccompanied asylum-seeking children among local authorities.
In accordance with the pan-London rota, Camden completed a UUCR on 18 April 2018, requesting the claimant's transfer to another local authority and facilitating the sharing of information with the receiving authority. On the form, Camden answered “yes” to the question of whether the claimant may have been trafficked. The form was provided to the SSHD the same day.
On 23 April 2018, the claimant had an asylum screening interview with the SSHD. The interviewing officer identified indicators of child trafficking. The claimant was referred to the NRM that day. The claimant was placed in the care of Barnet on 24 April 2018.
Where an UASC is transferred between local authorities pursuant to the pan-London rota, the receiving authority is provided with an UUCR form. The receiving authority must complete parts D and E of that form, in order to accept the transfer. The form is also used to request funding from the SSHD for looking after the unaccompanied child.
Barnet says that it does not hold a copy of the form in question. Had Barnet obtained and considered the form in accordance with the protocol, the claimant says that Barnet would have known early on about the concerns expressed by Camden that the claimant may have been trafficked.
On 27 April 2018, the SSHD made a positive “reasonable grounds” decision that the claimant was a child victim of trafficking. The SSHD's letter said that the claimant was entitled to a “recovery and reflection period” together with “safe accommodation and support” for his trafficking-related needs.
This letter was not sent to the claimant. The SSHD did, however, send a copy of the decision to the London Borough of Croydon. That was the London Borough in which the claimant had had his asylum screening interview. The London Borough of Croydon had, in fact, provided accommodation for the claimant for one night, following that interview.
It appears that by 14 May 2018, the SSHD had become aware that Barnet was looking after the claimant as his corporate parent. There is, however, no record of the SSHD providing Barnet with a copy of the reasonable grounds decision or otherwise informing Barnet of the claimant's status in this regard. Barnet did not ask the SSHD to provide the claimant's relevant immigration documentation.
Barnet's first care plan of 27 April 2018 recorded that he had suffered trauma in Libya. Subsequent assessments in May, August and November 2018 recorded details given by the claimant regarding his experiences in Ethiopia, Sudan and Libya. The claimant contends that these strongly indicated he was a CVOT. Barnet, however, did not act on its duty as a First Responder in respect of trafficking issues, so as to refer the claimant into the NRM. Although the claimant had, in fact, entered the NRM as a result of the SSHD's actions, Barnet's case is that it was then unaware of the reasonable...
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