The King on the application of JB (Ghana) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Bean,Lord Justice Peter Jackson,Lord Justice Baker |
| Judgment Date | 25 October 2022 |
| Neutral Citation | [2022] EWCA Civ 1392 |
| Docket Number | Case No: CA-2022-000417 & 000382 |
| Court | Court of Appeal (Civil Division) |
[2022] EWCA Civ 1392
Lord Justice Bean
Lord Justice Peter Jackson
and
Lord Justice Baker
Case No: CA-2022-000417 & 000382
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
PETER MARQUAND sitting as a deputy judge of the High Court
CO/2864/2020
Royal Courts of Justice
Strand, London, WC2A 2LL
Lisa Giovannetti KC and Colin Thomann (instructed by Government Legal Department) for the Appellant Secretary of State
Chris Buttler KC and Ayesha Christie (instructed by Duncan Lewis) for the Respondent JB
Hearing date 6 October 2022
Approved Judgment
This judgment was handed down remotely at 10.30am on 25 October 2022 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
There are separate financial support regimes for asylum seekers and victims or potential victims of modern slavery. Some individuals, including JB, the Respondent to this appeal, are both asylum seekers and victims of modern slavery. The appeal concerns the period from 24 March – 28 August 2020 during which the relationship between the two support regimes, and the financial entitlement of JB and others in the same position as him, was governed by paragraph 15.37 of a Home Office document entitled “ Modern Slavery Act 2015 – Statutory Guidance for England and Wales” (“the MSAG”).
The facts
JB is a national of Ghana, who (on his case) arrived in the United Kingdom in March 2011. In November 2019, he was arrested as an illegal entrant and taken into immigration detention. He claimed asylum on 12 December 2019.
While in immigration detention JB was referred to the National Referral Mechanism (“NRM”) for victims of trafficking. On 17 December 2019 the Single Competent Authority within the Home Office made a positive “reasonable grounds” decision with respect to JB, and he thus became entitled to support as a “potential victim of trafficking” (“PVoT”). There has been no final “conclusive grounds” decision on his status.
From 23 December 2019 to 25 March 2020, JB lived in accommodation provided by a friend. He received £35 per week and the assistance of a support worker.
In March 2020 JB's friend was no longer able to accommodate him. JB therefore applied for asylum support under section 95 of the Immigration and Asylum Act 1999. He was granted temporary support under section 98, and provided with temporary asylum accommodation at a hotel in Birmingham, on a full-board basis, from 25 March 2020. He continued to receive payments of £35 per week. On 31 March 2020 he was granted support pursuant to section 95.
On 14 August 2020, JB issued a claim for judicial review. He sought additional (and backdated) payments, increasing his financial support to £65 per week, on the basis that he had been entitled to that amount under the terms of the MSAG issued by the Home Secretary in March 2020. The guidance was amended on 28 August 2020. By amended grounds filed on 3 September 2020 JB limited his challenge to a claim for back-payments of the difference between the sums previously paid to him and the £65 per week he claimed to be entitled to under the MSAG before its amendment.
We enquired how many people were in the same position as JB, and were told that the answer is thought to be at most 63. With such a small cohort of claimants the costs of this appeal might be thought disproportionate to the amount directly at stake. The Secretary of State was concerned, however, that following the judge's decision in this case, some claims have been issued (though at present they are stayed) challenging the amendment to the MSAG in August 2020: that challenge has far greater financial implications.
The European Convention on Action against Trafficking
The European Convention on Action against Trafficking in Human Beings 2005 (“ECAT”) is the principal international measure designed to combat human trafficking. It is concerned, inter alia, with the treatment of those in respect of whom there are reasonable grounds to believe that they are victims of human trafficking and the support to be provided to them by Contracting States.
The United Kingdom signed the Convention in March 2007 and ratified it on 17 December 2008. It has not been incorporated into UK law. While individuals cannot enforce its provisions directly, insofar as the Secretary of State has adopted parts of the Convention as her own policy in guidance, her officials must follow that guidance unless there is good reason not to do so: R (EM) v SSHD [2018] EWCA Civ 1070 at §19.
Article 12 of ECAT provides as follows:
Article 12 – Assistance to Victims
1. Each Party shall adopt such legislative or other measures as may be necessary to assist victims 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. access to emergency medical treatment;
c. translation and interpretation services, when appropriate;
d. counselling and information, in particular as regards their legal rights and the services available to them, in a language that they can understand;
e. assistance to enable their rights and interests to be presented and considered at appropriate stages of criminal proceedings against offenders;
f. access to education for children.
2. Each Party shall take due account of the victim's safety and protection needs.
Analogous provision was made under Article 11 of the EU Anti-Trafficking Directive ( Directive 2011/36/EU), prior to the UK's withdrawal from the European Union at the end of the transition period. The scope of this duty was examined by the Court of Appeal in the EM case. Peter Jackson LJ held at [65] as follows:
“The general duty on the State under Arts. 11(2) and (5) of the Directive is to provide assistance and support to a PVoT by mechanisms that at least offer a subsistence standard of living through the provision of appropriate and safe accommodation, material assistance, necessary medical treatment including psychological assistance, counselling and information, and translation and interpretation services”.
The Modern Slavery Victim Care Contract
The NRM provides the machinery for determining whether someone is a potential or confirmed victim of trafficking and for ensuring they receive the appropriate support. Support is delivered to Potential Victims in England by the Salvation Army as prime contractor (and by its subcontracted support providers) pursuant to the Victim Care Contract (“VCC”) made between the Home Office and the Salvation Army in 2015. Schedule 2 to the VCC provided that, upon entry into the NRM of an individual assessed as being a Potential Victim, an initial risk assessment and needs-based assessment was to be undertaken, to ascertain the immediate welfare needs of the Potential Victim and their dependents. Accommodation was generally provided on a self-catered accommodation basis or, in exceptional circumstances, where individuals were found not capable of preparing their own food due to disability, debilitating illness or ongoing treatment, on a catered basis.
Schedule 2 to the MSVCC set out figures for subsistence payments in cash, in accordance with the following table:
| Service User Type | Value of Subsistence Payment |
| Service user in catered accommodation provided by the contractor | £35 |
| Service user in self-catering accommodation provided by the contractor | £65 |
| Service user accommodated by the authority and in receipt of subsistence payments through that service | £65 minus the amount of subsistence received by (sic) the authority |
| Service user not accommodated by the contractor or the authority (e.g. living with friends or family) | £35 |
As part of a reform package announced in October 2017, the Home Office proposed to align subsistence rates provided to Potential Victims to those received by asylum seekers. In K & AM [2018] EWHC 2951 (Admin) [2019] WLR 92 Mostyn J considered the scope of “subsistence needs” as provided for under Article 11 of the Trafficking Directive, and Article 13 of the Reception Directive. He observed at §29:
“[Counsel] drew my attention to regulation 9(4) of the Asylum Support Regulations 2000 which excludes, among other things, the cost of computers (which would include smartphones), travel, recreational items and entertainment in the assessment of “essential living needs” for the purposes of asylum support. But some money for these purposes is surely reasonably required by a person in the highly vulnerable and distressing position of a victim of trafficking. This has recently been in effect conceded by the Home Secretary through the contract change of 1 November 2018, to which I refer below”.
The Statutory Guidance
Mostyn J, whose decision in the case of K & AM was not appealed, had been critical of the failure of the Secretary of State to publish guidance for the provision of support to victims and potential victims of trafficking as she was required to do by s 49(1)(b) of the Modern Slavery Act 2015. As already noted, that statutory guidance was published on 24 March 2020. Although this was the day after the Prime Minister had announced the first national lockdown in response to the COVID-19 pandemic, the document had plainly been drafted before any lockdown was anticipated.
Financial support within the guidance was provided for at §15.35 to 15.36 (emphasis added):
15.35 Potential victims and victims of modern slavery who have entered the NRM, received a positive Reasonable Grounds decision and are in VCC accommodation or outreach...
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