The Court of Appeal has ruled that the Home Office provided insignificant cash payments to asylum seekers with trafficking claims during the first lockdown. The appeal was brought by the Secretary of State for the Home Department following a defeat in the High Court. The case is JB (Ghana), R (On the Application Of) v Secretary of State for the Home Department [2022] EWCA Civ 1392.

JB’s case

JB lodged his claim for asylum on 12 December 2019. He was referred to the National Referral Mechanism and received a positive reasonable grounds decision identifying him as a potential victim of trafficking. In March 2020 JB 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 catered asylum accommodation and £35 per week in subsistence. 

JB issued a judicial review claim on 14 August 2020. He sought back-dated payments on the grounds that he was entitled to £65 per week in accordance with section 15.37 of the Modern Slavery Act 2015 – Statutory Guidance for England and Wales.

The guidance 

The Modern Slavery Act 2015 – Statutory Guidance for England and Wales was published by on 24 March 2020. Section 15.37 confirmed that potential victims of trafficking who also get asylum support are entitled to a £65 weekly cash payment. No distinction was made in paragraph 15.37 between provisions for those in self-catered or full board accommodation.

The guidance just so happened to be the day after the UK went into lockdown, but it would have been written without the pandemic in mind. Before the pandemic, asylum seekers were generally only placed in full board accommodation for a short period of time, while waiting for their section 95 claims to be decided. If their application for asylum support was granted, they would usually be moved to self-catered accommodation. However, during the pandemic asylum seekers were placed in catered accommodation (often hotels) for prolonged periods. Financial support was, in many cases, replaced by whatever their accommodation provided (for example food and toiletries), a practice that was later found to be unlawful.

The phrasing of paragraph 15.37 meant that potential trafficking victims in catered accommodation received slightly more than the bare minimum because they received both cash and food. The Secretary of State soon cottoned on. She claimed it was a mistake in the guidance, and subsequently made amendments on 28 August 2020 to make the relevant distinction clear. The provisions and the rates specified have periodically been adjusted since and currently state:

“The current rate of financial support payable by the Home Office to potential victims or victims of modern slavery receiving MSVCC support depends on the accommodation they are in. Subject to paragraphs 15.39, 15.41, 15.42, and 15.43 below, the rates are as follows:

– £65 per week for those in self-catered MSVCC accommodation

– £35 per week for those in catered MSVCC accommodation (only for exceptional circumstances where the individual is assessed as requiring catered accommodation as they are not capable of preparing their own food due to disability, debilitating illness or ongoing treatment for severe substance use and addiction).

– £40.85 per week for those receiving outreach support in other accommodation.”

No bending of the rule

JB didn’t argue that the amendment to guidance was unlawful. He simply sought backdated payments between the periods 31 March 2020 and 28 August 2020, when the original version of the guidance was in place.

Using some pretty bold mental gymnastics, the Secretary of State argued that paragraph 15.37 contained an “obvious drafting error” and one that the court had the power to correct. Although this made for an interesting discussion on the limits of the court’s interpretative function, these arguments were rejected wholeheartedly by Lord Justice Peter Jackson: “it is impossibly ambitious for the Secretary of State to contend that there was an obvious mistake… As Mr Buttler put it, pithily and correctly, a flaw in the design of a policy is not the same as a drafting error”.

The court pointed out that the policy is not based on financial need and does not take any income, other than asylum support, into account. Whether intentional or not, it was also a feature of the policy that certain groups did better than others: “victims housed in self-catered trafficking accommodation who are in receipt of mainstream benefits of £94.15 per week receive a further £65 per week in trafficking support, whereas victims accommodated by a charity or a friend, who do not receive any state benefits or other financial support, receive just £39.60 per week in trafficking support”.

This appeal relates to a very specific set of circumstances and will only be helpful to those who, between 31 March 2020 to 28 August 2020, had parallel asylum and trafficking claims, were living in catered asylum support accommodation and receiving anything less than £65 per week. The Secretary of State estimates that there are 63 people out there who fit the bill, but at least these individuals will now be entitled to backdated payments.