In R (MD and EH) v Secretary of State for the Home Department [2022] EWCA Civ 336, the Court of Appeal has found that the Home Office’s non-payment of additional financial support to human trafficking victims who have children and receive asylum support was not unlawfully discriminatory.

The facts

The claim involved two Albanian single mothers who had conclusively been found to be victims of sex trafficking. Both sought asylum and have since been recognised as refugees.

MD and ED received asylum support while their asylum claims were pending. Under the Modern Slavery Victim Care Contract, this meant that they did not receive a support payment for their children, referred to in the judgment as “VoT dependent child support”. They would have received this had they not been asylum seekers, or if they had been in receipt of other benefits.

The claimants argued that this exclusionary rule was:

1. directly discriminatory against them as asylum-seeking trafficking victims with dependent children; and
2. indirectly discriminatory against women, as women are the majority of lone parents, and lone parents are less able than co-parents to find and pay for childcare.

The Home Office argued that the difference in financial support was due to a mistake. The VoT dependent child support should, in respect of trafficking victims in receipt of mainstream benefits have, been deducted from those benefits: the difference in payments was a “windfall” for those people. The claimants were simply being paid what the Home Office considered everyone should be paid.

In the High Court, Mr Justice Kerr accepted the argument that the payment difference was an oversight, but nevertheless found that both forms of discrimination alleged were made out and were unjustified, in breach of Article 14 of the European Convention on Human Rights.

The Court of Appeal’s decision

Mistake

The Court of Appeal found that the judge was entitled to conclude that the “mainstream benefits disadvantage” was a mistake, referring to the “common sense proposition” that the government did not intend to pay trafficking victims two child support payments.

This did not address the disadvantage relied on by the claimants, which was disadvantage suffered in their capacity as asylum seekers. But the same logic carried over to the non-payment of VoT dependent child support where, as in this case, asylum-seeker dependent child support payments had been made. 

It followed that the admitted difference in treatment between asylum seekers and non-asylum seekers was “purely nominal”. Those in the claimants’ position – i.e. asylum seeking trafficking victims with dependent children – received the same amount of money as victims with dependent children who claim mainstream benefits. The difference was that the money came by a different route: under the Asylum Support Regulations rather than the Victim Care Contract.

Damages

The conclusion that the difference in treatment was nominal was fatal to the claim for damages. Although the claimants did not receive VoT dependent child support, they received the equivalent sum by way of asylum seeker dependent child support. In the court’s words, “there was… in reality no financial loss for which [the claimants] needed to be compensated”.

Indirect discrimination

The Court of Appeal found that “elements in the judge’s reasoning” here were “plainly wrong”.

First, he used a wrong set of comparators. The correct analysis, as the claim was put, was to compare (a) asylum seeking trafficking victims with dependent children with (b) non-asylum seeking trafficking victims with dependent children. Instead, he compared (a) with asylum seeking victims without dependent children.

Second, the judge appeared to consider that the simple fact of a measure applying to a group “predominantly comprising women” was sufficient to show indirect discrimination. This reversed the test for indirect discrimination: it was not the gender composition within a pool that matters, but whether a measure has a differential impact as between men and women within the pool.

Third, the judge’s reasoning elided the tests of justification between direct and indirect discrimination – it is the measure that must be justified, not the discriminatory effect.

Counsel for the claimants sought to defend the judge’s finding of indirect sex discrimination on two alternative bases: (i) the exclusionary rule had a disproportionately adverse impact on women, who were disproportionately less able than men to rely on a co-parent to provide childcare to attend trafficking-related appointments; or (ii) the exclusionary rule gave rise to Thlimmenos-type discrimination, in that the Home Office failed to treat differently single parents who are asylum seeking trafficking victims from co-parents in that position.

The court was prepared to proceed on the basis that discrimination was made out, but found that it was justified. In the judges’ view, it was “plainly within the wide discretion available” to the Home Office to set a fixed rate of child support, notwithstanding that some parents may have greater financial needs than others.

Comment

This judgment will come as a relief for the Home Office, which had indicated that the High Court’s original ruling would have cost around £5 million per year.

The court also recognised, amidst an appeal focused on technical legal arguments, the individual tragedy of the claimants. Both were victims of horrific sexual and other abuse. They had developed post-traumatic stress disorder and other mental health problems. “They are”, said Lady Justice Simler, “undoubtedly vulnerable, and I do not underestimate the difficulties they have had in coming to the United Kingdom and adjusting to life here in these circumstances”.

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