R JB v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Peter Marquand |
| Judgment Date | 17 December 2021 |
| Neutral Citation | [2021] EWHC 3417 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2864/2020 |
[2021] EWHC 3417 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Peter Marquand
(SITTING AS A DEPUTY HIGH COURT JUDGE)
Case No: CO/2864/2020
Chris Buttler QC and Ayesha Christie (instructed by Duncan Lewis Solicitors) for the Claimant
Colin Thomann (instructed by Government Legal Department) for the Defendant
Hearing dates: 7 October 2021
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 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 Claimant is a potential victim of modern slavery and an asylum seeker. During the Covid-19 pandemic he was in full board hotel accommodation. The issue to be determined is whether, on a proper reading of the Defendant's policy on financial support to persons such as the Claimant, he was entitled to a total payment of £65 per week inclusive of any financial support to which he was entitled as an asylum seeker. The Defendant maintains that he was not entitled to that sum, but to a lesser amount.
The Legal Framework
I was referred to 2 authorities governing the proper interpretation by the court of policies such as those at play in this case. It was agreed that a Wednesbury review by the court was not the right approach. In Regina (Raissi) v Secretary of State for the Home Department [2008] EWCA Civ 72 the Court of Appeal was concerned with the interpretation of statements of policy in an ex-gratia compensation scheme and its application to a person who had been detained in custody following a serious default on the part of the detaining authorities. The Court of Appeal concluded that the appropriate test to interpret a policy statement was what would be “a reasonable and literate” person's understanding of the policy (paragraphs 108 and 123 of the judgment). Mr Thomann drew my attention to paragraph 121 where the Court of Appeal commented on the judgment of Lord Bingham in re McFarland [2004] 1 WLR 1289:
“Lord Bingham, it could be said, was doing no more than interpreting the document in accordance with the presumed intent of the maker, with the courts deciding what that intent was.”
Before the Supreme Court in Mahad v Entry Clearance Officer [2009] UKSC 16, there was no real dispute on the proper approach to the interpretation of statements of administrative policy in the Immigration Rules. Lord Brown of Eaton-Under-Heywood JSC set out the position at paragraph 10 of the judgment:
“Essentially it comes to this. The Rules are not to be construed with all the strictness applicable to the construction of a statute or a statutory instrument but, instead, sensibly according to the natural and ordinary meaning of the words used, recognising that they are statements of the Secretary of State's administrative policy.”
The intention of the Secretary of State is to be: “discerned objectively from the language used, not divined by reference to supposed policy considerations.”
I was also referred to the decision of Mr Justice Kerr in the Queen on the application of MD and EH v the Secretary of State for the Home Department [2021] EWHC 1370 (Admin) which considered the position of asylum seekers who were also victims of modern slavery (the situation of the claimants in the case) who did not receive financial support under the provisions of the “ Modern Slavery Act 2015: Statutory Guidance for England and Wales” in respect of dependent children, as against victims of modern slavery who were not asylum seekers who did. The court accepted the Defendant's evidence that the effect of the policy that resulted in additional financial support being paid to victims of modern slavery who were not asylum seekers was a mistake. Mr Justice Kerr found the different treatment unjustified under Article 14 of the European Convention on Human Rights and awarded damages, notwithstanding that the claimants received the level of financial support the Defendant intended them to receive, but the comparator group received more than the Defendant intended as a result of the mistake. This was useful context as it concerned the same policy document, but it was not necessary for me to rely on it to reach my decision.
Mr Thomann also relied on the principle of equality and referred to in Matadeen and Others v MGC Pointu and Others (Mauritius) [1998] UKPC 9 at page 109 C to D and the discussion in Regina (SC and others) v Secretary of State for Work and Pensions and others (Equality and Human Rights Commission intervening) [2021] UKSC 26 at paragraph 146. In summary, similar cases should be treated similarly and not doing so is indicative of an irrational decision. In the context of those cases, which concerned challenges to decisions of public authorities resulting in different treatment, there is a discussion of the role of the courts and parliament, with the care needed by the courts in applying tests of irrationality and proportionality in cases involving economic and social policy ( SC paragraph 146 and Matadeen page 109 E to G).
The modern slavery support regime
The Defendant is responsible for determining whether a person is a victim of modern slavery under the National Referral Mechanism (NRM). A person will be considered a potential victim of modern slavery (“a Potential Victim”) where there are “reasonable grounds” to do so. Having made such a decision, the Defendant goes on to consider whether there are “conclusive grounds” that a person is a victim of modern slavery (“a Victim”). The operation of the NRM is set out in the Modern Slavery Act 2015: Statutory Guidance for England and Wales (“MSAG”).
Financial support is paid to Potential Victims (and Victims, but this case only concerns the Claimant as a Potential Victim) in circumstances and at levels set out in the MSAG. At the material time, the relevant parts of the MSAG (version 1.01) stated:
“15.36. The current rate of financial support payable by the Home Office to potential victims or victims of modern slavery receiving VCC support depends on the accommodation they are in. The rates are as follows:
£65 per week for those in self-catered VCC accommodation
£35 per week for those in catered VCC accommodation
£39.60 per week for those receiving outreach support in other accommodation
…
Financial support for potential victims who are also receiving asylum support
15.37. The payment rates will be adjusted if the potential victim or victim of modern slavery receiving VCC support is also an asylum seeker or failed asylum seeker receiving financial support under sections 95, 98 or section 4 of the Immigration and Asylum Act 1999 (“asylum support”). In these circumstances, the individual will receive £65 per week, made up of payments from asylum support and a further payment from the VCC to take the total payment to £65 per week.”
The reference to “VCC” in the extracts from the MSAG above is to the modern slavery Victim Care Contract 1. This is a contract between the Defendant and the Salvation Army, which amongst other matters, outsources the provision of accommodation and financial support so that it is provided by the Salvation Army and/or their subcontractors. Paragraph 6 of schedule 2 of the VCC, in force at the relevant time, provided that the contractor (i.e., the Salvation Army or one of their subcontractors) must provide “subsistence payments in cash” to a Potential Victim. For a Potential Victim accommodated by the Defendant “and in receipt of subsistence payments through that service” the sum is specified as £65 “minus the amount of subsistence received [from the Defendant]”. A Potential Victim will be accommodated by the Defendant when discharging her asylum functions. The other details of subsistence payments are set out as follows:
• Service user in catered accommodation provided by the Contractor — £35
• Service user in self-catered accommodation provided by the Contractor — £65
• Service user not accommodated by the Contractor or the [Defendant] (e.g., living with friends or family) — £35
The Defendant issued guidance to the Salvation Army and its subcontractors on 29 January and 6 April 2020 in the form of a frequently asked questions document (“FAQ”). The FAQ included the following:
“ 1. Subsistence for accommodation clients:
a) Are we correct in understanding that Accommodation clients are entitled to and should get £65 pw subsistence regardless of benefits or income from work etc.?
Yes – unless they are receiving support from the asylum support system, in which case their financial support should be £65pw minus the NASS payment
2. Subsistence for catered accommodation clients:
a) Are we correct in understanding that Catered Accommodation clients are entitled to and should get £35 pw regardless of benefits or income from work etc.?
Yes – unless they are receiving support from the asylum support system, in which case their financial support should be £65pw minus the NASS payment.
…
4. Subsistence for outreach NASS clients :
a) Are we correct in understanding that Outreach NASS clients are entitled to and should get £65 pw minus the NASS payment? e.g. If client receiving £37.75 from NASS then they are only entitled to the £27.25 top up from the VCC. This is regardless of any other income?
This should be the position for all clients who are also receiving financial support from NASS, regardless of where they are accommodated. Any other income should be declared to the asylum support...
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