The King on the application of PM v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Steyn DBE |
| Judgment Date | 23 June 2023 |
| Neutral Citation | [2023] EWHC 1551 (Admin) |
| Docket Number | Case No: CO/2493/2020 |
| Court | King's Bench Division (Administrative Court) |
[2023] EWHC 1551 (Admin)
THE HON. Mrs Justice Steyn DBE
Case No: CO/2493/2020
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Birmingham Civil Justice Centre
33 Bull St, Birmingham, B4 6DS
Samantha Knights KC and Miranda Butler (instructed by Bindmans LLP) for the Claimant
Alan Payne KC and Colin Thomann (instructed by Government Legal Department) for the Defendant
Hearing date: 22 March 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 23 June 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
THE HON. Mrs Justice Steyn DBE
A. Introduction
The claimant is a victim of modern slavery. She is also an asylum seeker whose application for refugee status has yet to be determined. There are separate financial support regimes for victims or so-called ‘potential’ victims of modern slavery and for asylum seekers. This judgment concerns the financial support provided to the claimant in the period when it had been determined that there were reasonable grounds to believe that she was a victim of modern slavery (prior to the conclusive decision that she is a victim), and she had been assessed as eligible for support pursuant to s.98 of the Immigration and Asylum Act 1999 (‘the IAA’) (prior to the determination that she was eligible for support pursuant to s.95 of that Act).
By her claim, the claimant challenged the Secretary of State's cessation, on 6 July 2020, of support payments (‘trafficking support’) to victims or potential victims of modern slavery in ‘initial’ full-board asylum-seekers' accommodation (‘the cessation decision’). By her amended claim, she also challenged the re-instatement of financial support on 28 August 2020 at a significantly lower level. As the parties have done, I shall refer to victims or potential victims of modern slavery, together, as ‘victims’ and to the financial support provided to them in that capacity as ‘trafficking support’, while recognising that modern slavery encompasses more than trafficking.
The three grounds of claim are:
i) The Secretary of State unlawfully failed to pay financial support to the claimant, and those in a like situation, in accordance with §15.37 of the Modern Slavery Act 2015 – Statutory Guidance for England and Wales (version 1.01, published on 24 March 2020 and in force until 27 August 2020; ‘the Guidance’);
ii) The Secretary of State unlawfully failed to consult and/or make appropriate inquiry when reinstating financial support at a significantly lower rate in an amended version of the Guidance which came into force on 28 August 2020 (version 1.02; ‘the Amended Guidance’); and
iii) The Secretary of State failed to provide adequate financial support to meet the essential living needs of victims in initial accommodation, including the claimant.
On 15 March 2021, Pepperall J granted permission on Grounds 2 and 3, but refused permission on Ground 1. On 5 November 2021, Fordham J stayed the claim pending the judgment of the High Court in R (JB) v Secretary of State for the Home Department [2021] EWHC 3417 (‘ JB’). On 11 March 2022, I stayed the claim pending the outcome of the appeal in JB. The Court of Appeal gave judgment on 25 October 2022: JB (Ghana) v Secretary of State for the Home Department [2022] EWCA Civ 1392 (‘ JB (Ghana)’).
I granted permission in respect of Ground 1 at the outset of the hearing, the Secretary of State having conceded, in light of JB (Ghana), that permission should be granted to pursue that ground. With respect to Ground 1, the parties agree that JB (Ghana), in which the court held that the Secretary of State had unlawfully failed to make payments of £65 per week to those supported under s.95 of the IAA in initial accommodation, resolves the claimant's claim regarding the failure to make payments to her pursuant to that provision but they disagree as to her entitlement to support under s.98 of the IAA. Until a few days prior to the hearing, it was agreed that the claimant was supported under s.95 from 23 June 2020. However, in a statement dated 21 March 2023, Steve Smyth, Chief Caseworker in the Secretary of State's Asylum Financial Support team provided evidence that the claimant was only granted s.95 support on 1 December 2020. That is now common ground.
Neither the Guidance nor the Amended Guidance which is the subject of this claim remains in effect. On 1 March 2023, following the completion of a review, the Secretary of State issued a new version of the statutory guidance.
As the Modern Slavery Victim Care Contract 2020, issued by the Secretary of State, records in section 2.2 of schedule 2.21,
“Modern slavery is a serious and brutal crime in which people are treated as commodities and exploited for criminal gain. … Modern slavery includes human trafficking, slavery, servitude and forced and compulsory labour. Exploitation takes a number of forms, including sexual exploitation … and victims come from all walks of life. … In few other crimes are human beings used as commodities over and over again, for the profit of others. Victims endure experiences that are horrifying in their inhumanity.”
As a victim of modern slavery, the claimant is entitled to anonymity: ss.1 and 2(1)(db) of the Sexual Offences (Amendment) Act 1992.
B. Applications to admit late evidence and submissions
On the eve of the hearing the Secretary of State applied to adduce further evidence in the form of the statement of Mr Smyth to which I have referred and an accompanying exhibit. It is in the interests of justice to grant permission to rely on that late evidence, not least as it includes evidence provided pursuant to the Secretary of State's duty of candour, on which the claimant relies.
Following the hearing, the claimant filed an application on 4 May 2023 seeking permission to rely on an undated letter from Serco (‘the Serco letter’), the fifth witness statement of the claimant dated 3 May 2023, and a further note from Counsel for the claimant dated 4 May 2023. In a written response, dated 12 May 2023, while criticising the claimant's failure to disclose the Serco letter earlier, in compliance with her duty of candour, the Secretary of State does not object to the claimant's application. In the circumstances explained in the letter from the claimant's solicitors, and having regard to the clear relevance of the Serco letter, it is appropriate to admit this late evidence, and the parties' submissions addressing it.
C. Factual and procedural background
The claimant is a Kenyan national. She was (on her case) subjected to female genital mutilation (‘FGM’) at about the age of 12; and came to the United Kingdom as an adult, on 20 April 2002, in circumstances where her uncles and elders from her family village were pressuring her to continue her mother's work performing FGM. She paid an agent to facilitate her journey to the UK. On arrival she was taken to a brothel where she was sexually exploited for a period of 10 months.
On escaping the brothel in February 2003, she was given a place to sleep by an African woman she met on the street and subsequently lived for a number of years in Leicester with a friend of that woman. In 2007, she began living with a man (‘S’) with whom she had started a relationship the year before. She made applications for leave to remain as the partner of a settled person in 2008 and 2014, both of which were refused.
In 2015, the claimant disclosed to her GP that she had been subjected to FGM in Kenya and forced sexual exploitation in the UK. She was diagnosed as suffering from post-traumatic stress disorder (PTSD).
On 29 May 2018, the claimant submitted an application for leave to remain on private and family life grounds, providing a detailed account of what she had been through. That application was rejected as she did not have a passport. However, in light of the disclosures made by the claimant in her statement, in early February 2019 the Home Office referred the claimant to the National Referral Mechanism (‘NRM’), which is responsible for determining whether she is a victim of modern slavery, and treated her application for leave to remain as a claim for asylum.
On 8 February 2019, the Competent Authority within the Home Office determined that there are reasonable grounds to believe that the claimant is a victim of modern slavery (‘the Reasonable Grounds decision’). As a result, the claimant became entitled to support and assistance as a potential victim.
The claimant was assigned an Outreach Support Worker employed by Ashiana, Sheffield, an organisation which has been sub-contracted by the Salvation Army to provide support and assistance to victims of modern slavery. The Salvation Army is the Prime Contractor funded by the Secretary of State pursuant to the Victim Care Contract (‘VCC’) (which was renewed and retitled the Modern Slavery Victim Care Contract (‘MSVCC’) in January 2021), by which means the Secretary of State seeks to discharge her duty to support victims. Ashiana is one of 12 subcontractors which provide support. The claimant first met her Support Worker on 20 February 2019.
From the end of February 2019, the claimant began receiving £35 per week as a potential victim of modern slavery. At that time, she was still living with S, and so she did not require accommodation. Her Support Worker also provided the claimant with emotional support and arranged counselling sessions for her.
The claimant had not previously disclosed her experiences of trafficking and sexual exploitation to her partner. When he read the statement she had provided to the Home Office in around May 2019, their relationship began to...
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