The High Court has again taken the Home Office to task for its stingy approach to supporting vulnerable asylum seekers during the pandemic. In R (JB) v Secretary of State for the Home Department [2021] EWHC 3417, the court held that the department unlawfully reduced cash payments to an asylum seeker and potential trafficking victim during the pandemic. Peter Marquand, sitting as a deputy High Court judge, said that the Home Office’s policy on cash support for people in this position was “clear and unambiguous”, leaving no room for flexible interpretation. 

Support for modern slavery victims

Financial support is available to victims of modern slavery, which includes human trafficking, under the Victim Care Contract (VCC). This is an arrangement between the Home Office and the Salvation Army for the latter to provide accommodation and financial support to victims and potential victims of modern slavery (potential victims being those who have received a positive “reasonable grounds decision” but are still awaiting a “conclusive grounds decision”). 

The VCC states that confirmed or potential victims who also get asylum support are entitled to a £65 weekly cash payment. This is consists of the £39.63 that destitute asylum seekers are entitled to, topped up by modern slavery support.

Reduced support payments

JB was an asylum seeker receiving support under section 95 of the Immigration and Asylum Act 1999. He was also a potential slavery victim with a positive reasonable grounds decision. But the Home Office only gave him £35 a week, arguing that JB’s essential living needs were being met in his asylum accommodation. (Like many other asylum seekers during the pandemic, JB was placed in a hotel instead of dispersal accommodation.)

Officials argued that the reduced payment was justified because the accommodation was catered, and so living needs were being met “in kind”. This was an argument that appeared to fall foul of the High Court’s recent conclusions in JM v SSHD [2021] EWHC 2514.

No ambiguity to policy

The court found that the reduced payment contradicted the wording of the modern slavery guidance at the time:

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.

Rejecting the Home Office’s argument for a more contextual or purposive interpretation, the judge found:

There is no ambiguity in the policy and there is no lacuna. The policy is clear as it states that a person who is both a Potential Victim and an asylum seeker receiving financial support under, in this case, section 95 IAA will receive a total of £65 per week. This sum is to be made up of payments from asylum support plus a further payment from the VCC. There is no basis to interpret “financial support” as meaning “the sum due under Regulation 10(2)”. This is not the natural and ordinary meaning of that phrase. 

Note that the guidance has since been changed, and now reads:

The payment rates will be adjusted if the potential victim or victim of modern slavery receiving MSVCC support is also receiving support under sections 95, 98 or section 4 of the Immigration and Asylum Act 1999 (“asylum support”)… Generally, support to cover essential living needs is provided through a payment of £39.63 per week, but in some cases essential living needs are met through in-kind assistance, or a combination of in-kind assistance and payments. A further payment will be made from the MSVCC of £25.37 (calculated as £65 per week minus the current essential living rate of £39.63 provided by asylum support)…

JB’s case comes off the back of a number of other challenges to the Home Office’s provision of asylum support during the COVID-19 pandemic. Many others who found their support reduced suffered significant hardship because of it and will likely be eligible for backdated payments as a result of this judgment.

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